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THE UNITED STATES INTERNATIONAL TRADE COMMISSION Washington, D.C THE UNITED STATES INTERNATIONAL TRADE COMMISSION Washington, D.C. Before The Honorable Carl C. Charneski Administrative Law Judge In the Matter of CERTAIN PERSONAL DATA AND Investigation No. 337-TA-710 MOBILE COMMUNICATIONS DEVICES AND RELATED SOFTWARE UNOPPOSED MOTION FOR LEAVE TO FILE NOKIA’S MOTION FOR LEAVE TO FILE AMENDED AND SUPPLEMENTAL NOTICE OF PRIOR ART OUT OF TIME Pursuant to Commission Rule 210.15, Respondents Nokia Corporation and Nokia Inc. respectfully move the Administrative Law Judge (“ALJ”) for leave to file one day out of time Nokia’s Motion for Leave to File Amended and Supplemental Notice of Prior Art. Pursuant to Order No. 58, Nokia’s motion for leave was due on December 6, 2010. Nokia initiated the process for filing its Motion and some of the exhibits thereto (attached as Exh. 1) on EDIS before the 5:15pm EST deadline. Due to technical difficulties associated with the creation of the final PDF file and network connectivity issues, however, Nokia’s upload time extended beyond the deadline and Nokia was unable to complete its filing (see Exh. 2, EDIS Filing Confirmation). Nokia served Apple and the OUII Staff with its Motion and all exhibits in two service emails on December 6 (see Exh. 3, 12/6/10 T. Brooks Emails). Nokia has adjusted its internal processes in an attempt to address these technical and network difficulties in the future. Counsel for Apple and the Staff indicated that they do not oppose this motion for leave. Given the importance of this filing and the lack of prejudice to the parties, Nokia respectfully requests that the ALJ grant Nokia’s motion for leave to file its Motion for Leave to File an Amended and Supplemental Notice of Prior Art one day out of time. Dated: December 7, 2010 Respectfully submitted, Paul F. Brinkman S. Alex Lasher M. Scott Stevens Patrick A. Fitch ALSTON & BIRD LLP 950 F Street, N.W. Washington, DC 20004 Tel. (202) 756-3300 Fax (202) 756-3333 E-mail: [email protected] Patrick J. Flinn John D. Haynes Keith Broyles ALSTON & BIRD LLP 1201 West Peachtree Street Atlanta, GA 30309-3424 Tel. (404) 881-7000 Fax (404) 881-7777 Counsel for Respondents Nokia Corporation and Nokia Inc. 2 EXHIBIT 11 THE UNITED STATES INTERNATIONAL TRADE COMMISSION Washington, D.C. Before The Honorable Carl C. Charneski Administrative Law Judge In the Matter of CERTAIN PERSONAL DATA AND Investigation No. 337-TA-710 MOBILE COMMUNICATIONS DEVICES AND RELATED SOFTWARE NOKIA’S MOTION FOR LEAVE TO FILE AMENDED AND SUPPLEMENTAL NOTICE OF PRIOR ART Pursuant to Commission Rule 210.15 and Ground Rule 5, Respondents Nokia Corporation and Nokia, Inc. (collectively, “Nokia”) respectfully move for leave to supplement their Notice of Prior Art filed on September 24, 2010. Since filing its September 24 Notice of Prior Art, Nokia has conducted substantial additional discovery that has identified additional information relating to the prior art Nokia identified in its notice. Nokia has also determined that it no longer intends to rely on certain references identified in the notice, and Apple has terminated the Investigation against Respondents with respect to four of the six patents asserted against Nokia. Accordingly, Nokia requests leave to file the Amended and Supplemental Notice of Prior Art (Ex. A) to specifically identify the additional information located in discovery after September 24th, and remove from the Notice the art on which Nokia no longer relies. Apple has refused to consent to Nokia’s Amended and Supplemental Notice because in its view the Notice adds prior art not previously disclosed in the September 24 Notice. Nokia disagrees, and as explained below, has good cause to supplement the Notice to specifically identify additional evidence relating to the systems it identified previously. The evidence to which Apple objects can be broken down into two categories: (i) documents obtained from third-parties after the filing of the September 24 Notice of Prior Art, and (ii) prior art that was identified explicitly in the September 24 Notice, and (iii) prior art that was identified explicitly in the September 24 Notice as application for all asserted patents. With respect to the additional documents obtained from third parties, Respondents’ September 24 Notice of Prior Art identified a number of third-party systems that were prior art to various patents, along with a number of references relating to each system that had been located by Respondents by September 24 as a result of Respondents’ diligent discovery efforts prior to that date. After filing the September 24 Notice, and as envisioned by the Procedural Schedule, Respondents’ third-party discovery efforts continued and Respondents sought additional discovery relating to the identified prior art systems from numerous sources. Through this discovery, Respondents have obtained additional evidence concerning a number of the third-party systems – each of which was properly identified on September 24. With respect to Apple’s second objection, it is Apple’s position that the September 24 Notice required Respondents to specifically list each prior art reference under a heading for each asserted patent, even if many of the references applied to more than one of the asserted patents. Rather than repeating the full list of prior art for each patent, Respondents identified the references specific to each patent, but specifically incorporated the other references identified elsewhere in the Notice. Apple’s objection on this point is therefore entirely semantic. It cannot dispute that Respondents identified 2 the full range of references listed in the September Notice for each asserted patent, and nothing more is required. Because each of these references were disclosed in the September 24 Notice, Apple’s objection to their inclusion in Nokia’s Amended and Supplemental Notice should be rejected. Apple indicated that it intends to oppose the Motion. Dated: December 6, 2010 Respectfully submitted, /s/ M. Scott Stevens_____________ Paul F. Brinkman S. Alex Lasher M. Scott Stevens Patrick Fitch ALSTON & BIRD LLP 950 F Street, N.W. Washington, DC 20004 Tel. (202) 756-3300 Fax (202) 756-3333 E-mail: [email protected] Patrick J. Flinn John D. Haynes Keith Broyles ALSTON & BIRD LLP 1201 West Peachtree Street Atlanta, GA 30309-3424 Tel. (404) 881-7000 Fax (404) 881-7777 E-mail: [email protected] Counsel for Respondents Nokia Corporation and Nokia Inc. 3 THE UNITED STATES INTERNATIONAL TRADE COMMISSION Washington, D.C. Before The Honorable Carl C. Charneski Administrative Law Judge In the Matter of CERTAIN PERSONAL DATA AND Investigation No. 337-TA-710 MOBILE COMMUNICATIONS DEVICES AND RELATED SOFTWARE NOKIA’S MEMORANDUM IN SUPPORT OF ITS MOTION FOR LEAVE TO FILE AMENDED AND SUPPLEMENTAL NOTICE OF PRIOR ART INTRODUCTION Since filing its September 24, 2010 Notice of Prior Art, Nokia has conducted substantial additional discovery that has identified additional information relating to the prior art Nokia identified in its notice. Nokia has also determined that it no longer intends to rely on certain references identified in the notice, and Apple has terminated the Investigation against Respondents with respect to four of the six patents asserted against Nokia. Accordingly, Nokia requests leave to file the Amended and Supplemental Notice of Prior Art to specifically identify the additional information located in discovery after September 24th, and remove from the Notice the art on which Nokia no longer relies (see Ex. A; section relating to the 705 and 263 patents). Apple has refused to consent to Nokia’s Amended and Supplemental Notice because in its view the Notice adds prior art not previously disclosed in the September 24 Notice. Nokia disagrees, and as explained below, has good cause to supplement the Notice to specifically identify additional evidence relating to the systems it identified previously. The evidence to which Apple objects can be broken down into two categories: (i) documents obtained from third-parties after the filing of the September 24 Notice of Prior Art, and (ii) prior art that was identified explicitly in the September 24 Notice, and (iii) prior art that was identified explicitly in the September 24 Notice as application for all asserted patents. With respect to the additional documents obtained from third parties, Respondents’ September 24 Notice of Prior Art identified a number of third-party systems that were prior art to various patents, along with a number of references relating to each system that had been located by Respondents by September 24 as a result of 1 Respondents’ diligent discovery efforts prior to that date. After filing the September 24 Notice, and as envisioned by the Procedural Schedule, Respondents’ third-party discovery efforts continued and Respondents sought additional discovery relating to the identified prior art systems from numerous sources. Through this discovery, Respondents have obtained additional evidence concerning a number of the third-party systems – each of which was properly identified on September 24. This new evidence can be broken down as follows: Additional evidence concerning VCOS produced by third-party John Lynch and third-party LSI; Additional evidence concerning MWave produced by third-party Texas Instruments and third-party IBM; Additional evidence concerning PC Media produced by third-party Freescale; Additional evidence concerning Open Signal Processing Architecture (OSPA) produced by third-parties Intel, Robert Frankel, Microsoft, and Texas Instruments; Additional evidence concerning Intel Proshare/Project Mikado produced by third-parties Intel, Robert Frankel, and Texas Instruments; Additional evidence concerning Microsoft Resource Manager Interface System, produced by third-party Microsoft; Additional evidence concerning X Windows, produced by third-party MIT; and Additional evidence concerning NeWS, produced by third-party Sun Microsystems. Respondents now seek to supplement their notice of prior art with the additional evidence about these systems that was received after September 24th.
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