Complaint (19 C.F.R
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JONATHAN J ENGLER Tel: (202) 407-8625 ▪ [email protected] February 1, 2021 VIA ELECTRONIC FILING The Honorable Lisa R. Barton Secretary to the Commission U.S. International Trade Commission 500 E Street, S.W., Room 112 Washington, D.C. 20436 Re: In the Matter of Certain LTE-Compliant Cellular Communication Devices, ITC Investigation No. 337-TA-____ Dear Secretary Barton: In accordance with the Commission’s Temporary Change to Filing Procedures dated March 16, 2020, Complainant Evolved Wireless, LLC submits for filing the following documents in support of Evolved’s request that the Commission commence an investigation under Section 337 of the Tariff Act of 1930, as amended: • One (1) electronic copy of Evolved’s Verified Confidential Complaint (19 C.F.R. § 210.8(a)(1)(ii)); • One (1) electronic copy of Evolved’s Verified Non-Confidential Complaint and Public Interest Statement. (19 C.F.R. §§ 210.8(a)(1)(i) and 210.8(b)); • One (1) electronic copy of Evolved’s letter and certification requesting confidential treatment for the information contained in confidential exhibits 162C and 228C to the Verified Complaint. (19 C.F.R. §§ 210.5(d) and 201.6(b)); • One (1) electronic copy of the public exhibits to the Verified Complaint including: o One (1) electronic certified copy of United States Patent Nos. RE46,679 (“the ’679 patent”) and 10,517,120 (“the ’120 patent”), cited as Exhibits 1 and 3 to the Verified Complaint (19 C.F.R. §§ 210.12(a)(9)(i)); o One (1) electronic copy of a non-certified version of United States Patent No. RE48,326 (“the ’326 patent”), cited as Exhibit 2 to the Verified Complaint. Evolved has ordered a certified copy of the ’326 patent and will provide a certified copy as soon as it is received. The Honorable Lisa R. Barton February 1, 2020 Page 2 o One (1) electronic copy of the certified assignment records for the ’679 patent, the ’326 patent, and the ’120 patent, cited as Exhibits 4-9 to the Verified Complaint (19 C.F.R. § 210.12(a)(9)(ii)); and o One (1) electronic copy of the public version of confidential exhibits 162C and 228C to the Verified Complaint (19 C.F.R. § 210.8(a)(1)(i)). • One (1) electronic copy of confidential exhibits 162C and 228C to the Verified Complaint (19 C.F.R. §§ 210.8(a)(1)(ii) and 201.6(c)); • One (1) electronic copy each of the certified prosecution history of the ’679 patent and the ’120 patent, which are included as Appendices A1 and C1 to the Verified Complaint (19.C.F.R. § 210.12(c)(1)); • One (1) electronic copy of the non-certified prosecution history of the ’326 patent, which is included as Appendix B1 to the Verified Complaint. Evolved has ordered a certified copy of the ’326 patent prosecution history and will provide a certified copy as soon as it is received. • One (1) electronic copy of each patent and applicable pages of each technical reference mentioned in the prosecution history of the ’679 patent, the ’326 patent, and the ’120 patent (not already part of Appendices A1, B1, and C1), which are included as Appendices A2, B2, and C2 to the Verified Complaint (19.C.F.R. § 210.12(c)(2)). • Photographs of representative infringing imported articles from each proposed respondent in lieu of physical samples per Commission Rule 210.12(b), included as Exhibits 193-223 to the Verified Complaint. Physical samples of each proposed respondent's infringing imported articles are available for inspection at the offices of Complainant's counsel. • Photographs of the representative domestic industry articles in lieu of physical samples per Commission Rule 210.12(b), included as Exhibit 224 to the Verified Complaint. Physical samples of the representative domestic industry articles are available for inspection at the offices of Complainant's counsel. The Honorable Lisa R. Barton February 1, 2020 Page 3 I am available at your convenience to answer any questions. Thank you for your attention to this matter. Sincerely, /s/ Jonathan J. Engler___________ Jonathan J. Engler Counsel for Complainant Evolved Wireless, LLC Enclosures JONATHAN J ENGLER Tel: (202) 407-8625 ▪ [email protected] February 1, 2021 VIA ELECTRONIC FILING The Honorable Lisa R. Barton Secretary to the Commission U.S. INTERNATIONAL TRADE COMMISSION 500 E Street, S.W., Room 112 Washington, D.C. 20436 Re: In the Matter of Certain LTE-Compliant Cellular Communication Devices, ITC Investigation No. 337-TA-____ Dear Secretary Barton: Pursuant to Commission Rules 210.5(d) and 201.6(b)(1), Complainant Evolved Wireless, LLC respectfully requests confidential treatment of the business information contained in the Verified Confidential Complaint and Confidential Exhibit Nos. 162C and 228C. The information contained in the Verified Confidential Complaint and Confidential Exhibit Nos. 162C and 228C qualifies as confidential business information pursuant to Commission Rule 201.6(a) because: It is not available to the general public; The disclosure of such information would cause substantial harm to Evolved and Evolved’s licensee, LG Electronics Co., Ltd., and Evolved’s and LG’s respective competitive positions; and Unauthorized disclosure of the information could impair the Commission’s ability to obtain information necessary to perform its statutory function. Please contact me with any questions regarding this submission. Thank you for your attention to this matter. Sincerely, Jonathan J. Engler ATTORNEYS AT LAW 1133 CONNECTICUT AVENUE, NW WASHINGTON, DC 20036 Tel: (202) 467-6300 Fax: (202) 466-2006 www.adduci.com UNITED STATES INTERNATIONAL TRADE COMMISSION WASHINGTON, D.C. In the Matter of: § § Inv. No. 337-TA-______________ CERTAIN LTE-COMPLIANT § CELLULAR COMMUNICATION § DEVICES § CERTIFICATION REGARDING REQUEST FOR CONFIDENTIAL TREATMENT I, Jonathan J. Engler, counsel for Complainant Evolved Wireless LLC, declare as follows: 1. I have reviewed Evolved’s Verified Confidential Complaint and Confidential Exhibit Nos. 162C and 228C filed concurrently with this Certification. 2. Confidential Exhibit 228C is a private agreement between Evolved and LG Electronics Inc. that contains confidential information regarding the terms of the agreement and the circumstances that led to the agreement, which is not available for public dissemination. Disclosure of this information to the public would cause substantial harm to Evolved and LG, their respective competitive positions, and their ability to negotiate future agreements. Disclosure of this information would also impair the Commission’s ability to obtain information necessary to perform its statutory function. 3. Confidential Exhibit 162C contains confidential commercial and financial information concerning LG Electronics Co., Ltd.’s investments in its domestic industry, which is not available for public dissemination. Disclosure of this information to the public would cause substantial harm to LG and its competitive position. Disclosure of this information also would impair the Commission’s ability to obtain information necessary to perform its statutory function. 4. I declare under penalty of perjury that the foregoing is true and correct. Executed this 1 day of February, 2021 in Washington, DC. 1 Dated: February 1, 2021 Respectfully submitted, /s/ Jonathan J. Engler Jonathan J. Engler ADDUCI, MASTRIANI & SCHAUMBERG LLP 1133 Connecticut Avenue, N.W., 12th Floor Washington, D.C. 20036 Telephone: 202-467-6300 Facsimile: 202-466-2006 E-Mail: [email protected] Counsel for Complainant Evolved Wireless LLC 2 UNITED STATES INTERNATIONAL TRADE COMMISSION WASHINGTON, D.C. In the Matter of: § § Inv. No. 337-TA-______________ CERTAIN LTE-COMPLIANT § CELLULAR COMMUNICATION § DEVICES § STATEMENT OF PUBLIC INTEREST Pursuant to 19 C.F.R. § 210.8(b), Complainant Evolved Wireless, LLC respectfully submits this separate Statement of Public Interest, filed concurrently with the Complaint. This proceeding involves the importation, sale for importation, and/or sale after importation into the United States of certain LTE-compliant cellular communication devices that infringe U.S. Patent Nos. RE46,679 (“the ’679 patent”), RE48,326 (“the ’326 patent”), and/or 10,517,120 (“the ’120 patent”) owned by Evolved. Specifically, Evolved seeks limited exclusion orders directed to each Proposed Respondent and their subsidiaries, affiliates, agents, successors, and assigns covering the LTE-compliant cellular communication devices detailed in the Complaint (“Accused Products”). Evolved also seeks cease-and-desist orders against each Proposed Respondent and a bond upon each Proposed Respondents’ importation of infringing products during the Presidential review period. At the outset, this investigation involves standards-essential patents. In particular, and as described in more detail in the complaint, LG Electronics Inc. (“LGE”) - the original patent owner and now Evolved’s licensee, declared each of the asserted patents as essential to the LTE mobile communications standard, a 4G wireless broadband technology developed by the Third Generation Partnership Project (“3GPP”) and administered by the European Telecommunication Standards Institute (“ETSI”). In its declarations to ETSI, LGE committed to license the asserted patents, as 1 well as others that have been declared as essential to those 3GPP standards, on terms that are fair, reasonable, and non-discriminatory (“FRAND”). Evolved conducts its licensing efforts in accordance with ETSI’s intellectual property rights policies and has been attempting to do so with respect to the Proposed Respondents’ Products, albeit with no reciprocal cooperation from the Proposed Respondents. Whether to issue remedial orders based on standards-essential patents is evaluated as part of the Commission’s public interest analysis, which comes after a violation determination. Certain Indus. Control Sys. Software, Sys. Using Same, & Components Thereof, Inv. No. 337-TA-1020, Order Denying Request for Entry into Early Disposition Pilot Program (Sept. 13, 2016). To help in that decision, the Commission has occasionally asked the presiding ALJ to take evidence and argument with respect to the public interest and provide findings of fact and a recommended determination.1 Likewise, the U.S.