UNITED STATES INTERNATIONAL TRADE COMMISSION Washington, D.C. In the Matter of CERTAIN ELECTRONIC DEVICES, INCLUDING WIRELESS COMMUNICATION DEVICES, PORTABLE MUSIC AND DATA PROCESSING DEVICES, AND TABLET COMPUTERS Investigation No. 337-TA-794 COMPLAINANTS' MOTION TO STRIKE AND RESPONSE TO RESPONDENT'S NOTICE OF NEW FACTS -1- MOTION TO STRIKE APPLE'S NOTICE OF NEW FACTS Complainants Samsung Electronics Co., Ltd. and Samsung Telecommunications America, LLC respectfully move to strike Respondent Apple Inc.'s improper Notice of New Facts filed on December 21, 2012. Pursuant to the Commission's Notice, the parties to this investigation and any interested third parties were required to submit briefs no later than December 10, 2012. See 77 Fed. Reg. 70464-66 (Nov. 26, 2012). The Notice expressly states that "No further submissions on these issues will be permitted unless otherwise ordered by the Commission." Id. Given that Apple did not seek leave to file an additional submission, much less receive permission to do so, Apple's Notice violates the Commission's instructions and should be stricken. If the Commission chooses to consider Apple's alleged new facts, Samsung respectfully requests that it be given an equal opportunity to present its views on the matters raised by Apple. To that end, a short response is set forth below for the Commission's consideration. RESPONSE TO APPLE'S NOTICE OF NEW FACTS Samsung's decision to forego injunctive relief for certain declared-essential patents asserted against Apple in Europe has no bearing on any issue presently before this Commission and there is nothing inconsistent with Samsung's decision to seek redress here for Apple's violation of Section 337. As reflected in the press release cited by Apple, the European Commission is not advocating a per se rule barring "the availability of injunctive relief for SEP holders." (Apple's Notice of Dec. 21, 2012, Ex. B, European Commission Press Release of Dec. 21, 2012 at 2.) Here, unlike in Europe, a full trial on the merits has been held and an extensive evidentiary record developed. At the hearing, Apple had every opportunity to introduce whatever evidence it might have had to support its well-publicized assertions that Samsung acted -2- in a manner contrary to obligations it may have owed to the European Telecommunications Standards Institute ("ETSI"). Yet Apple failed to meet that burden, and each and every one of its FRAND-related defenses was categorically rejected by the ALJ for failure of proof. Significantly, the ALJ concluded that Apple had failed to show that it was willing to negotiate a FRAND license for Samsung's declared-essential patents. (Initial Determination at 470.) That finding is directly contrary to the assumption being made by the European Commission at this very preliminary stage of its investigation. The evidence of record here demonstrated that Apple never had any intention of voluntarily entering into a FRAND license for any of the asserted Samsung declared-essential patents and Samsung expects the evidence to be developed in Europe to support a similar conclusion. For the above reasons as well as those set forth fully in Samsung's briefs in response to the Commission's Questions, Samsung submits that there is no statutory or regulatory impediment that would prevent the Commission from granting the requested exclusion order in this Investigation. CONCLUSION Accordingly, Samsung respectfully requests that the Commission strike Apple's improper Notice of New Facts. -3- Dated: December 28, 2012 Respectfully submitted, /s/ S. Alex Lasher _______________________________________ Charles K. Verhoeven QUINN EMANUEL URQUHART & SULLIVAN, LLP 50 California Street, 22nd Floor San Francisco, CA 94111 Kevin P.B. Johnson Victoria F. Maroulis QUINN EMANUEL URQUHART & SULLIVAN, LLP 555 Twin Dolphin Drive, 5th Floor Redwood Shores, CA 94065 Thomas D. Pease Eric Huang QUINN EMANUEL URQUHART & SULLIVAN, LLP 51 Madison Avenue, 22nd Floor New York, NY 10010 William Price Robert J. Becher QUINN EMANUEL URQUHART & SULLIVAN, LLP 865 S. Figueroa St., 10th Floor Los Angeles, CA 90017 Paul F. Brinkman Alan L. Whitehurst S. Alex Lasher QUINN EMANUEL URQUHART & SULLIVAN, LLP 1299 Pennsylvania Ave. NW, Suite 825 Washington, DC 20004 Charles F. Schill STEPTOE & JOHNSON LLP 1330 Connecticut Avenue, NW Washington, DC 20036 Counsel for Complainants Samsung Electronics Co., Ltd. and Samsung Telecommunications America, LLC -4- In the Matter of Certain Electronic Devices, Including Wireless Communication Devices, Portable Music and Data Processing Devices, and Table Computers Inv. No. 337-TA-794 CERTIFICATE OF SERVICE I, Jon Tap, hereby certify that on this 28th day of December, 2012, copies of the foregoing document were served upon the following parties as indicated: The Honorable Lisa R. Barton Acting Secretary U.S. International Trade Commission 500 E Street, SW Washington, D.C. 20436 Via First Class Mail Via Hand Delivery (8 copies) Via Overnight Courier Via Electronic Mail Via EDIS The Honorable E. James Gildea Administrative Law Judge U.S. International Trade Commission 500 E Street, SW Washington, D.C. 20436 Email: sarah.zimmerman@usitc.gov Via First Class Mail Via Hand Delivery (2 copies) Via Overnight Courier Via Electronic Mail Lisa Murray Office of Unfair Import Investigations U.S. International Trade Commission 500 E Street, SW Washington, D.C. 20436 Email:Lisa.Murray@usitc.gov Via First Class Mail Via Hand Delivery Via Overnight Courier Via Electronic Mail Nina S. Tallon Wilmer Cutler Pickering Hale and Dorr LLP 1875 Pennsylvania Avenue, NW Washington, D.C. 20006 Email: WHAppleSamsungITC794Service@wilmerhale.com Via First Class Mail Via Hand Delivery Via Overnight Courier Via Electronic Mail Counsel for Apple Inc. /s/ Jon Tap Jon Tap