12-03-30 itc initial determination denying apple summary determination against samsung

7/28/2019 12-03-30 ITC Initial Determination Denying Apple Summary Determination Against Samsung

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UNITED STATES INTERNATIONAL TRADE COMMISSIONWashington, D.C.

In theMatter ofCERTAIN ELECTRONIC DEVICES, Inv. No. 337-TA-794INCLUDINGWIRELESS COMMUNICATIONDEVICES, PORTABLE MUSIC ANDDATAPROCESSING DEVICES, ANDTABLETCOMPUTERS

ORDER NO. 47 DENYING APPLES MOTION FOR SUMMARYDETERMINATION TERVIINATINGTHE INVESTIGATION ASTO THE 644AND 348 PATENTS BASED ON SAMSUNGSAGREEMENTSWITH CHIP SUPPLIERS ANDFRANI)COMMITMENTS(March 30, 2012)

OnMarch 5, 2012, Respondent Apple Inc. (Apple), pursuant to Commission Rule210.18 (a) and Ground Rule 2, moved for summary determination against ComplainantsSamsung Electronics Co. Inc. and Samsung Telecommunications America, LLC (collectivelySamsung), tenninating the investigation as to United States Patent Nos. 7,486,644 (the 644patent) and 7,706,348 (the 348patent). (Motion Docket No. 794-042.) Apple bases itsmotion on licensing agreements {

}, and on Sa1nsungscommitments to the members of the European Telecommunications Standards Institute(ETSI), which includes Apple, that Samsung would license the asserted patents on fair,reasonable, and non-discriminatory (FRAND) terms. (Mot. at l.)

On March l5, 2012, Samsung opposed Apples motion on the grounds that it lacks asufficient legal basis, misinterprets transactional instruments, ignores relevant facts, misconstrues

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applicable law, and fails to state adequate material facts. (Oppn at l3.)On that same date, theCommission lnvestigative Staff (Staff) responded in opposition to Apples motion, sayingmaterial facts remain in dispute. (Staff Resp. at 2.)

V I. Statement of FactsA. The facts, according to Apple.

In its statement of facts in an accompanying memorandum, Apple says that the 644patent purports to disclose [a] method and apparatus for transmitting control information of asmall block size Withhigh reliability in a mobile communication system supporting uplink

packet data service. (Mot. Mem. at 3.) According to Apple, Samsung contends that [t]he 644Patent. ..relates to the SGPP UMTS standards that govern many, if not most, cell phones sold inthe U.S. (Id.) Apple notes that Samsnng is alleging that Apples iPhone (AT&T), iPhone 4S,and iPad 2 3G (AT&T) infringe the 644 patent, primarily based on features and functionalities{

}, both of which are baseband processor chips.(Id. at 3-4.)

Apple says the 348 patent purports to disclose an apparatus and method forencoding/decoding a transport format combination indicator in a CDMA mobile communicationsystem. (Id.) According to Apple, Samsung contends that [t]he 348 patent is related to afeature found in UMTS. (Id.) Apple notes that Samsung is alleging that the iPl10ne4 (AT&T),iPhone SGS, iPhone 3G, iPad 2 3G (AT&T), and iPad 3G infringe the 348 patent, primarilybased on features and functionalities of the {

} both of which are baseband processor chips. (Id.)

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According to Apple, {

} (Id .)As regards the {

}. (ld.) Apple saysthat have riority dates later thanthat for the Samsung patents, such as the 644 patent,

December 31, 2000, {

}

{

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{

}

(Id)As regards Apples assertion that Samsung is precluded from asserting the 644 and 348

patents because of its commitments in relation to the ETSII, Apple first notes that standard-setting compacts offer many significant procompetitive advantages by combining the expertiseofmany industry participants for achieving a consensus on technical solutions. (Id. (citing AlliedTube & Conduit Corp. v. Indian Head, lnc., 486 U.S. 492, 500501 (l988)).) Apple argues that,absent proper legal safeguards, standardsetting compacts also have a serious potential foranticompetitive harm. (Id. (citing Allied Tube, at 501).) To address that potential harm, saysApple, standard~settingorganizations generally adopt procedures that prevent the standard-setting process from being biased by members with economic interests in stifling competition.(Id) These safeguards typically include disclosure and licensing commitments under whichparticipants in the standardsetting activities commit to license any intellectual property theyw1European Telecommunications Systems Institute.

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claim is essential to practicing any relevant standards. (Id. at 7.) According to Apple, thesecommitments are critical to avoiding harm to competition, and once a standard is set,implementers invest significant amounts in the standard and lock themselves into the chosentechnologies. (Id.) Apple argues that a lock-in occurs because it is prohibitively expensive toswitch from a technology that a firm has already implemented to complywith a standard of analtemative technology. (Id. (citing a study by the Federal Trade Commission, The Evolving IPMarketplace," dated March 201 1).)

Apple says that, with costs involved in switching technologies so high, absent sufficientconstraints, patentecs can use the threat of injunctive relief or an ITC exclusion order that wouldbar sales of the implementers standard-compliant products to extract royalties that are farbeyond those that are warranted by the intrinsic value of the patented technology, a phenomenonknown as hold-up. (Id.) According to Apple, standard-setting rules are designed to protectagainst hold-ups. (Id.) Apple says that at ETSI, the Intellectual Property Rights (IPR) Policythat governs the standard-setting process, provides safeguards to preclude holdupbehavior inorder to ensure that ETS1, its members, and other implemcnters of ETSI standards do not sinkinvestments into such standards only to find those investments are wasted because essential IPRis not available. (Id.) Apple notes that ETSls IPR Policy expressly states that it is governed bythe laws ofl-Trance. (Id.)

Apple says that on December 14, 1998, Samsung, by letter to ETSI, made a generalFRAND2 commitment [w]ith regard to the WC-DMA3echnology being elaborated by ETS1 asa standard for the UMTS4 Terrestrial Radio Access (UTRA) FDD Mode declaring thatSamsung was prepared to grant licenses to its essential lPRs on a fair, reasonable, and non

2Fair, reasonable, and non-discriminatory, (Oppn, Ex. 2 at Clause 6.1.)3Wideband Code Division Multiple Access. (Oppn, Ex. 40 [the 644patent] at 1:39.)4Universal Mobile Telecommunication Service. (Oppn, Ex. 40 at 1:37.)5


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discriminatory basis in accordance with the terms and conditions set for in Clause 6.1 of theETSI IPR Policy. (Id.) Apple says that declaration does not specify any particular patents, andinstead, according to its general nature, Samsung promised to license, on FRAMD terms, allSamsung IPR that it would ever claim is essential to UMTS. (Id.)

Apple says that on December 31, 2003, Samsung submitted a declaration to ETSIcovering the 348 patent. (1d.) Apple says that Samsungs declaration stated that Samsungbelieved its indentified patents and patent applications to be essential, and Samsung committedto license them on FRAND terms. (Id. at 9-10.) Apple says that on May 16, 2006, Sarnsungsubmitted a declaration to ETSI covering the 644 patent. (Id. at 10.)

B. The facts, according to Samsung.Samsung offers the following as its Counterstaternent of Material Facts.Samsungs commitments to E TSI.According to Samsung, ETSI, founded as a standard-setting organization in 1988, has

promulgated over 4,000 standards for infonnation and communication technologies, includingthe UMTS standard. (Oppn at 4.) Samsung says ETS1was created to build a single unifiedmarket in Europe. (Id.) Sarnsung says that in furtherance of this goal ETSI adopted anlntellectual Property Rights Policy (ETSI LPRPolicy), which seeks a balance between theneeds of standardization for public use in the field of telecommunications and the rights of theowners of ]PRs. (Id.) Sarnsung says the ETSI web site explains that each STANDARD usershould seek directly a license from a patent holder. (]d.) Samsung quotes the following fromthe ETSI IPR Policy:

When an ESSENTIAL IPR relating to a particular STANDARD or TECHNICALSPECLFICATIONis brought to the attention of ETSI, the Director-General ofETSI shall immediately request the owner to give within three months an

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undertaking in writing that it is prepared to grant irrevocable licenses on fair,reasonable and non-discriminatory terms and conditions...(Id.) Samsung says the ETSI IPR Policy does not define what constitutes FRAND terms, but,instead, encourages parties to agree on FRAND terms through bilateral negotiations, stating:Specific licensing terms and negotiations are commercial issues between the companies andshall not be addressed within ETSI. Technical Bodies are not the appropriate place to discussIPR issues. (Id. at 4-5 (quoting Ex. 3 [ETSI Guide on IPRs (27 Nov. 2008)], at 4.1.)

Sarnsung says the ETSI IPR Policy does not include any provisions restricting the abilityof its members to seek an injunction. (Id. at 5.) According to Samsung, ETSI has rejectedsuggestions by some of its members that would have restricted the ability of the members topursue certain remedies respecting their intellectual property. (Id.) Consequently, arguesSamsung, ETSI members remain free to seek injunctions for infringement whenever offendingparties refuse to enter into meaningful bilateral negotiations for a license on FRAND terms. (Id.)

Samsung says that, as a member of ETSI since 1996, it has executed several undertakingsconsistent with ETSI IRI Policy, including the following: With regard to the WCDMAtechnology being elaborated by ETSI as a standard for the UMTS Terrestrial Radio Access(UTRA) FDD mode, SEC [Samsung Electronics Corporation] is prepared to grant licenses to itsessential lPRs on a fair, reasonable, and non-discriminatory basis in accordance with the termsand conditions set forth in Clause 6.1 of the ETSI IPR Policy. (Id.) Subsequently, reportsSamsung, it executed other declarations that identified IPRs that may be consideredESSENTIAL to certain standards, some of which pertain to the UMTS standard and others todifferent standards. (Id.) Sarnsung says it declared the 348 and (>44patents as essential orlikely to become essential to certain ETSI standards, stating:

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The SIGNATORY [Samsung] has notified ETSI that it is the proprietor of theIPRs listed in Annex 2 and has informed ETSI that it believes that the lPRs maybe considered ESSENTIAL to the Standards listed above.The SIGNATORY and/or its AFFILIATES hereby declare that they are preparedto grant irrevocable licenses under the IPRs on terms and conditions which are inaccordance with Clause 6.1 of the ETSI IPR Policy, in respect of theSTANDARD, to the extent that the lPRs remain ESSENTIAL.

(ld.) Samsung points out that, Whilethese declarations state that Samsung is prepared to grantlicenses to essential intellectual property rights, they do not specify the terms under which anylicenses are to be granted. (Id. at 6.) Samsung notes that it is apparent from the language citedthat the declarations do not mention such fundamental terms as duration, geographic scope, orroyalty rate of any licenses. Further, says Samsung, while it has disclosed patents for bothUMTS and nonUMTSstandards, its declarations do not specify whether its patents would bebundled into a group license, andwere they to be, which patents would be affected. (Id.)

Samsungs agreement with { }{

}

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}

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(Id. at 6-7.) According to Samsung, {

} (Id.)Samsung says the {

}. (Id.) Samsung says that; {

Samsungs agreement with {Samsung says that on {

On {

} (Id.)

}. (Id.)

}

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} (Id. at 8.) Samsung says that the contracting parties agreed that {

}~(Id)Supply chain fbr Applesbaseband chips

1A 1esaccused products, including those that have {Samsung says that all 0 ppId tn A 1esResponse to Samsungs}, are manufactured outside the United States. ( . (ci 1 g pp

Interrogatory No. 3, Aug. 18, 2011).) Samsung says the accused products incorporate {} baseband processors, that are manufactured

States, and {} (Id. at 9.) The { }

outside the United

baseband chips in the accused products are

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manufactured by {} for Apple in June 2007, when the iPhone was announced.

Samsung says { }~.(Id.)According to Samsung, the {

}. (Id.) Samsung says that, although {

} (Id-)

Samsung says that { } baseband processor ({}) and those chips are made at two plaees{ }, Taiwan, and { }, South Korea.

(Id.) The chips are thercaiter shipped to China, where they are incorporated in the accusedproducts. (Id.)

Apple rejection of Samsung soffer to licenseSamsung says that, in July 2010, Apple communicated WithSamsung concerning certain

patents that relate to mobile devices and accused Samsung of infringement. OnAugust 4, 2010,the two parties met and discussed Apples allegations. ([d.) Samsung says that, at that meeting,Samsung informed Apple that its products infringed several of Samsungs patents, and at asubsequentmeeting on September 10, 2l()l , Samsung provided details to Apple regarding thoseinfringements. (1d.) Samsung says that at the latter meeting, Apple inquired whether Samsungwas willing to license its patents, and Samsung told Apple that Samsungwas prepared to grantlicenses to Apple on FRAND terms. (Id.) Samsung says the two parties met twice more, butApple ultimately rejected Samsungs proposals for resolving their dispute, and on April l5,2011, Apple filed an infringement suit against Samsung, which was the first of many lawsuits

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brought by Apple against Samsung inwhat has since become an ongoing battle over smartphones and tablets. (Id.)

Samsung says that on April 27, 201l it filed suit against Apple, alleging infringement ofa number of Samsungs patents, including ones that were declared essential to the UMTSstandard. (Id.) Samsung says that shortly after that, Apple requested that Samsung quote Appleterms for a FRAND license for chips that practice the UMTS standard, and Sarnsung respondedonMay 13, 2011, requesting Apple to identify the patents to which it was seeking licenses. (Id.)Samsung says that on June 3, 2011 it sent Apple a non-disclosure ageemcnt prior to the partiesundertaking any negotiations, and on July l8, 2011, Apple responded with its execution of thatagreement.

Two days after its receipt of the non-disclosure agreement signed by Apple, Samsunginformed Apple that Samsung was willing to accept a{ }percent royalty rate on sales of Appleproducts practicing the UMTS standard in exchange for granting a license on Samsungsportfolio of patents and pending applications declared essential to the UMTS/WCDMAstandards. (Id. at ll.) On August l8, 2Oll, Apple rejected Samsungs offer, saying the rate wasinconsistent with Samsungs FRAND obligations. (Id.) Sainsung says that Apple did notpropose a rate that Apple considered to be FRAND and in subsequent correspondence, Samsungurged Apple to make a counterproposal so that negotiations could proceed, but Apple refused todo so. (Id) Samsung says that on June 28, 201l, it requested that the ITC commence thisinvestigation wherein Samsung contends that all of the accused products infringe the 644patent,and of those products that use the { }, they also infringe the348patent. Samsung says that the earliest application to which the 644 patent claims prioritywas filed on December 1, 2004. (Id.)

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II. The Parties ArgumentsExhaustionApple contends that.Samsungs 644 and 348 patents are exhausted as applied to

the { } in the iPhone 4 (AT&T), iPhone 3GS, iPhone 3G, iPad 2 3G (AT&T), and iPad 3G. Apple argues that the Supreme Court has held that [t]he longstanding doctrine of patentexhaustion provides that the initial authorized sale of a patented item tenninates all patent rightsto that item. (Mot.Meni. at ll-12.) Apple argues that the fundamental purpose of patentexhaustion [is] to prohibit post-sale restiictions on the use of a patented article. (Id. at 12(quoting from Tessera, Inc., v. Int! Trade Comm n, 646 F.3d 1357, 1370 (Fed. Cir. 2011)).)Apple says the doctrincs protection against post-authorized-sale infringement claims is deeplyentrenched in the law, citing Keeler v. Standard Folding-Bed C0., 157U.S. 659, 666 (1985) andAdams v. Burke, 84 U.S. (17 Wall.) 453, 456 (1873).

According to Apple, {}. (Id.) Apple says that {

} (Id. at 12-l3.) Applecontends that the agreeme11tslanguage could not be clearer and that the legal implications areequally clear: {

} (Id. at 13 (citing Quanta, 553 U.S. at 625).) Apple argues thatSamsung received valuable cross~license rights { } as part of the bargain it struck With{ } and Samsung thus rcceive[d] the consideration for its [patents] use and part[ed] withthe right to restrict that use. (Id. (citing Adams, 84U.S. at 456).) Apple says that Samsung

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cannot now seek further compensation fromApple by asserting patent rights that have beenexhausted, as regards the { } chips. (Id.) Therefore, concludes Apple, patent exhaustionrequires summary determination on Samsungs 644 and 348 patent claims as applied to theiPhone 4, iPhone 3GS, iPhone 3G, and iPad 3G products, because Samsungs infringementclaims are based on Apples use of { } chips, and Samsung exhausted its rights with respect tothose chips. (Id.)

Apple argues that Samsungs agreement with { } creates two hurdles thatSamsung cannot overcome. First { } chip to Apple were madewith Sarnsungs authorization and thus exhausted Samsungs patent rights as applied to thosechips. (Id.) Second, {

}. (Id. at 13~l4.) Specifically, says Apple, { A} promisedthe following:

{

}

(Id. at 14 (citing EX.F at Section { }.) This promise, argues Apple, clearly encompasses the644patent, and Samsung has never contended that any of its declared-essential patents falloutside the scope of this agreement. (1d.) Moreover, according to Apple, {

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the { }, those sales exhausted this patent as applied to those chips. (Id. (citingQuanta, 553 U.S. at 625).)

Apple argues that {

}, Samsungs attempted revocation has no effect because it is directlycontrary to its FRAND obligations, as recently held by a French tribunal, which upon analyzingthe obligations imposed by Samsungs commitment to ETSI to irrevocably license its essentialpatents on FRAND terms (governed under French law) explained that Samsungcannot. . revoke the license granted to { } with respect to the implementation of [twodeclared essential patents]. . .the license granted to { } Forthese essential patents beingirrevocable in accordance with the ETSI rules. (Id. at 15-16 (citing Ex. O [Ex Parte Order ofDecember 8, 201l] at 16).) Apple says that because Samsung irrevocably licensed each of itsdeclared-essential patents, including the 644patent, in accordance with Clause 6.1 of the ETSIlPR Policy, Samsung has granted { } authorization to make and sell products thatsubstantially embody its declared-essential patents. (Id. at lo.) Apple says that underSamsungs commitment to ETSI to license the declared essential patents in accordance with theprinciples of Clause 6.1, any license it granted under those patents was required to be irrevocableand Samsung has so declared. (Id. (citing Mot. Ex. L).) Apple argues that if Samsung werepermitted to revoke its covenant to { } that would permit Samsung to use its declaredessential patents to stifle competition in downstream products that contain UMTS chipsets,including competition fiorn Samsungs most threatening and innovative rival, Apple. Apple saysthis is preciselywhat the ETSI lPR Policy is designed to prevent, and Samsung should not be

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permitted to violate its FRAND commitments by revoking its covenant to { }, and itsattempt to do so should be given no legal effect. (ld.)

Samsung argues that Apple has failed to meet its burden of demonstrating that there is nogenuine dispute of material fact as to whether the sale of {

} exhaust the 644 and 348 patents. (Oppn at l9.) First, argues Samsung, Apple has failedto demonstrate that Samsung authorized the sale of the {

}; and second, even if { }, such as { }, Applehas provided no evidence that any initial sale of baseband chips occurred in the United States,which is necessary in order to exhaust a United States patent. (Id.) According to Samsung, {

}. According to Samsung, the {

} (Id. (citingEx. l1).) Samsung says this language does not automatically extend licenses to any subsidiariesbut, rather, requires { } to take some affirmative action in order to demonstrate that it hasexercised this right. (Id. at 19-20 (citing Intel Corp. v. Broadcom Corp, 173 F. Supp. 2d 201,222 (D. Del. 2001).) That court, notes Samsung, held that a provision in license agreementgivingMotorola the right to extend patent licenses to a subsidiary required that Motorolaaffirmatively exercise that right, and in the absence of evidence showing that, the court grantedsurnniaryjudgment in favor of Intel and against Motorolas subsidiary, holding that the

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subsidiarys sales were not covered under { } licenses to Motorola. (Id. at 20.) Samsungargues that, just as in that case, the language in the { } Agreement does not automatically vestany interest in any licenses simply because the licensee, here { },has subsidiaries. Also, arguesSamsung, because {

}. (Id. (citing Ex. 13 { } at 1).)Further, argues Sarnsung, {_

} (Id.) Samsung argues that

numerous provisions in the { } demonstrate that the purpose of the agreement was

to recognize { } right to make, have made, use, or sell their own products, notthe products of others; and language in the preamble of that agreement demonstrates that itspurpose Was to {

} (Id. at 20-21 (citing Ex. ll at 1).) Samsung assertsthat {

) (Id. at 21 (citing Ex. ll at { }) Sarnsungnotes that {

} (Id.) Furthermore, according to Samsung, {

} (Id. (citing Ex. 13).)

Sarnsung argues that to interpret the {

}

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{

},Whichwould be contrary to New York lawdisfavoring contract interpretations that render contract provisions superfluous. (Id. at 21-22(citing Beal Sav. Bank v. Sommer, 8 N.Y.3d 318, 324 (2007).)

Samsung says that Apples motion fails to disclose the fact that, in prior litigationbetween Apple and Sarnsung in Korea, Apple itself introduced as evidence a declaration firornan{ } employee that conclusively established that any sales of the { } by { } occuroutside the United States; therefore, because these sales do not take place in the United States,they cannot exhaust United States patent rights. (Id. at 22.) To prove exhaustion, arguesSarnsung, Apple has to establish that there are no genuine issues of material fact at issue; yetApple has not demonstrated that the alleged sale giving rise to Apples exhaustion claim tookplace in the United States. (Id. (citing Jazz Photo Corp. v. International Trade Commn,264F.3d 1094, 1105 (Fed. Cir. 2001).) Samsung, quoting the court in Cornell Research Foundation,Inc. v.Hewlett-Packard Company, 2007 WL 4249135 at *51 (N.D.N.Y 2007), says, Thelocation of a sale offered in support of a patent exhaustion defense presents an issue of fact.(Id.) in a further quotation from Cornell, Samsung says, The determination of whether [aparticular sale] occurred under the laws of the United States, thereby [giving rise to anexhaustion defense] requires the court to analyze the particulars of the transaction in issue, aninherently fact-laden exercise. (Id. at 22-23 (quoting from Cornell at *50).) For this reason,argues Samsung, courts frequently deny summary judgment as to exhaustion, because the issueWhether a sale occurred within the United States is far too fact-intensive to be resolved on amotion for summary judgment. (Id. at 23 (citing Minebea Co., Ltd. v. Papst, 374 F.Supp. 2d at202,218(one. 2005).)

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Samsung argues that the issue as to whether a sale took place in the United Statesrequires a rnulti-factor analysis that necessitates consideration of where the relevantnegotiations took place, the location where payment was made and, notably, the geographicalpoint at which delivery was taken. (Id. (citing Cornell, 2007 WL 4349135 at *5l).)Ultimately, according to Samsung, it is the location where delivery occurs that is the mostimportant factor, because there cannot be a sale within the United States for purposes ofexhaustion if delivery is made outside the United States. (Id.) In the situation athand, arguesSamsung, the facts demonstrate that the sales of the { } baseband chips

took place outside the United States, because the sales invoices show that the chips weremanufactured by { } and shipped from there to an { }, andalthough { }. (Id. at 24(citing Ex. 22 [Hebert Decl.] at 1]4.).) From {

}. (Id. (citing Ex. 22).) The location of the deliveryof the goods demonstrates that the sale from { } is made outside the United States, as is thedelivery, and the { } baseband chips are being sold outside the UnitedStates. (ld.) In fact, argues Samsung, there is no evidence that {

} (1d.) Thus, there remains a material issue of fact as to whether { } sells chipsindirectly to Apple, and there is no evidence as to the location of the negotiation of any of thesales or where payment was made. (Id.)

Samsung also argues that there are genuine issues of material fact as to whether{ }baseband chip sales to Apple exhausted Samsungs 644 patent. (Id.) Samsungsays that, while Apple contends that { } sale of its baseband chip exhausts the 644patent, there is no evidence that any authorized sale of such chips took place in the United States.

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([d.) According to Samsung, the evidence of record demonstrates that the sales of {

}. (Id. at

25 (citing Ex. 20 { } Depo.] at 33-35).) The fact that these chips are shipped from oneforeign country to another, in the course whereof they do not enter the United States,demonstrates that the chips are not sold here and, therefore, cannot be said to have resulted in anexhaustion of the 644patent. (Id.) At minimum, claims Samsung, the sale of these chipsoutside the United States creates a question of fact as to whether the 644 patent is exhausted, asclaimed by Apple. (Id.) i

Staff argues that a party seeking summary judgment always bears the initialresponsibility of informing the. ..court of the basis for its motion, and identifying those portionsof thepleadings, depositions, answers to interrogatories, and admissions on file, together withthe affidavits, if any, which it believes demonstrate the absence of a genuine issue of materialfact. (Staff Resp. (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).) Staff says Applemotion fails to fulfill Apples initial burden of identifying evidence that supports severalfundamental parts of its defense. (Id.)

Staff says the Commission and Federal Circuit have held that the sale ofa product undera license is not by itself sufficient to trigger patent exhaustion, and in order to exhaust thepatentees rights, the sale must take place within the United States. (Id. at 4 (citing CertainSemiconductor Chips Having Synchronous Dynamic RandomAccessMemory Controllers andProducts Containing Same, lnv. No. 337-TA-661, Commn Op at l6-18 (Aug. l0, 2010).)However, says Staff, Apple does not discuss this issue and the single invoice presented by Appleimplies that at least one sale may been made in the United States, even though it was shipped to

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China, reports Staff, but it is impossible to tell. (Id. (citing Mot, Ex. M.) Furthermore, arguesStaff, in order to terminate the investigation based on the defense of exhaustion, Apple mustdemonstrate, or at least allege, that all of { }s sales to Apple took place here, but it has notdone so. Therefore, according to Staff, Apple has not satisfied its initial burden of showing thatit is entitled to summary determination with respect to the accused products that incorporate { }chips. (Id.) Also, according to Staff, Supreme Court precedent establishes that sales of acomponent, such as a baseband processor chip, exhaust the rights of the patentee only when thecomponents essentially, if not completely, embody the invention. (Id. (citing QuantaComputer, Inc. v. LG Electronics, Inc., 553 U.S. 617, 630 (2008). [n this investigation, saysStaff, Apple does not address whether or not the chips that it buys from { } essentially embodythe claimed inventions. Instead, agues Staff, Apple makes only a statement that the infringementallegations are based primarily on the chips. (Id. at 4-5 (citing Apple Statement ofMaterialFacts at fl6.) Staff argues that in the absence of any explanation as toWhether the facts relied onby Apple satisfy the Supreme Courts criteria set forth in Quanta, Apple has not carried theinitial burden of showing that it is entitled to summary determination. (Id. at 5.)

With respect to Apples motion as it relates to the Samsung license agreement with{ }, Staff argues, again, that Apple has failed to allege that the relevant sales were allmade in the United States. (Id.) Also, according to Staff, Apple has failed to allege that the{ } chips at issue substantially embody the claimed invention. (Id.) Under thesecircumstances, argues Staff, Apple has not shown that it is entitled to summary determination.(Id. at 5-6.) In addition, argues Staff, Apple has not shown that it is a third-party beneficiary tothe { } license. Staff says that Apple appears to concede that even if the licenseoriginally extended to Apple as a { }

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{ }. (Id. at 6 (citingMot. Mem. at 19; Mot., Ex. G 1[5.6 ({

}-;Mot., Ex. T {

}-) Staff says that Apple does not appear to dispute this action by Samsung but, rather,argues only that the termination was legally ineffective under French law. (Id. (citing Mot.Mem. at 19-20).) Staff argues that Apples position regarding the application of French law is aseparate issue from whether Apple remains a third-party beneficiary under the { }license, which is governed by California law. (Id.) Staff says that Apple has not pointed to anyreason why Samsungs revocation of any rights Apple may have once enjoyed by virtue of the{ } license agreement was not in accordance with California law. Therefore, arguesStaff, Apple is not entitled to summary determination.

Covenant Not T0 SueApple says that, in addition to patent exhaustion, Samsungs 644 infringement claims

against the iPhone 4S fail for another, independent reason; namely, in the { },Samsung promised not to assert patents, such as the 644 patent, against { },such as Apple, where the alleged basis for infringement is the {

}. (Mot. Mem. at 17.) However, argues Apple, that is precisely what Samsung hasdone. Apple notes the following provision of the { }:

{

}

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(Id. at 17 (citing EX. G at { }~)Apple argues that the 644 patent is within the scope of {

} Apple says that Sarnsung has claimed inthis investigation that Apples iPhone 4S infringes the 644 patent by complying with the UMTSstandard, and has declared to ETSI that the 644 patent is essential to that standard; thus thispatent is within the scope of Samsungs covenant. (Id. at 18.)

Apple asserts that it is a {

Apple says that Sarnsungs infringement theory regarding the 644patent, as it relates tothe iPhone 4S, depends on the { } which is incorporated therein. (Id. at 19.) Applecontends that it is clear that Samsungs { }

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that it is prepared to grant irrevocable licenses on fair, reasonable and non-discriminatory tennsand conditions under such IPR. (Id. at 20 (citing Mot., Ex. H at Clause 6.1).)

Apple contends that Samsung has granted Apple, as a { },authorization to use the 644 patent {

}. (Id.) Under Samsungs commitment to ETSI to license the Declared EssentialPatents in accordance with the principles of Clause 6.1, any license it granted under those patentsWasrequired to be irrevocable, and therefore Samsung ought not be permitted to revoke thatauthorization and impede Apple from competing with it for downstream products, therebyaccomplishing exactly the anticompetitive, exclusionary effect that the irrevocable FRANDcommitment was designed to avoid. (Id.)

Apple says that, even if Samsung could overcome its agreements with {}, Salnsung is prevented from doing so by reason of its FRAND commitments, and

under governing French law, Apple is presently licensed to the 644 and 348 patents. ([d.) Atminimum, according to Apple, Samsung either contractually agreed to forego, or else Waived,any right to seek an exclusionary remedy of the type available from theUnited StatesInternational Trade Commission. Apple contends that prior Commission precedent allowingdeclared-essential patent claims to proceed in this forum is distinguishable. (Id. at 21.)

Apple argues that, under French law, Apple has a binding and presently enforceablelicense to both the 644 and the 348patents, even before royalty terms have been agreed upon,

and because selling or importing a licensed product cannot result in infringement of a patent, alicense is a complete defense in a Section 337 investigation. (Id. (citing Certain SemiconductorChips withMinimized ChipPackage Sizeand Products Containing Same, lnv. No. 337-TA-630,Initial Determination at 190 (Aug. 28, 2009) and Certain Computer Products, Computer

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Components and Products Containing Same, Inv. No. 337-TA-628, Initial Determination at 156(March 16, 2009), Notice of Commission Non-review (July 13,2009).) According to Apple, amember that submits a FRAND declaration to ETSI pursuant to Clause 6.1 of the IPR Policy, asSamsung did for the 644 and 348 patents, irrevocably commits to grant a license to the LPRidentified in the declaration to any patty that implements the standard. (Id.) Under French law,such a commitment is contractually binding on the maker as a continuing offer that remainsopen for acceptance by those to Whom the offer is made. (Id. at 21-22 (citing Mot., EX.P[Molfessis Rep.] at 1[1l63-64).)

According to Apple, as a matter of French law, an implementer of the UMTS standardaccepts a license when it begins to implement the standard. (Id. at 22 (citing Mot., EX.P at 1171).) To establish a valid patent license upon acceptance, under French law, only the object ofthe license, the patents to which they apply, must be identified. (Id. (citing Mot, Ex. P at 11117,98-99).) By specifying the patents in the ETSI declarations pursuant to Clause 6.1, both theduration of the licenses and the geographic scope are established, and the duration is theindividual term of each of the patents, since the grant is irrevocable, unless a patent ceases beingessential before its expiration. (Id. (citing Mot. E. P at fl99).) The geographic scope is that ofthe patent itself. (Id.)

Apple says a license is consummated by an implementcr whether or not the parties haveagreed on certain terms, such as the royalty, because French law recognizes that, as a generalrule, a valid contract can be formed without price or royalty being determined. (Id. at 22-23(citing Mot., Ex. P at 111]8-30).) Moreover, argues Apple, a decision by a French court ofappeal, relying on the 1995decision of the Cour de cessation, confirmed just that, holding that apatent license contract Wasvalidly formed Where it provided that the parties would later agree on

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a royalty depending on sales volumebecause [a]hsence of the determination of the price doesnot void the contract. (Id. at 23 (citing Mot., Ex. P at {I32).) Apple argues that if the ETSI IPRPolicy is to achieve its purpose of widespread adoption of the standards and avoidance of the riskof [PR being unavailable, it necessarily means that manufacturers must be able to implementthe standard without first negotiating licenses with each holder of declared-essential IPR. (Id.(citing l\/lot., Ex. H at Clause 3.1).) According to Apple, if implementers had to negotiate withevery declared-essential patent holder before introducing new products, it could take years fornew products to come to market, and given the purpose of ETSI IPR Policy to seek[] a balancebetween the needs of standardization for public use in the field of telecommunications and therights of the owners of [PRs, it makes perfect sense that implementers are licensed onimplementation, with the appropriate royalty to be determined later through negotiations or, ifnecessary, by a court. (Id. at 24.) Such a system, argues Apple, encourages widespreadimplementation, while also ensuring that LPRowners are compensated with FRAND royalties, tothe extent patents are actually essential and valid and not exhausted. (Id.)

Apple argues that even if Samsungs FRAND declarations to ETSI had not resulted inApple being licensed, they would still preclude Samsung from pursuing an exclusion or ceaseand-desist order because, by making those declarations, Samsung has contracted away any rightto prevent Apple from using the patents. (Id. at 24.) Apple argues that Samsungs membershipin, and declarations to, ETSI create binding contractual obligations, which, even if they fall shortof a present license, preclude Samsung from seeking an exclusionary remedy. (Id. (citing Mot.,EX.P at filfil82-87).) Apple argues that in other litigations Samsung has acknowledged thatmembership in ETSI creates an actual or implied contract to comply with ETSIs governingdocuments, including, but not limited to, ETSls Intellectual Property Rights Policy. (Id. at 24

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25 (citing Mot., Ex. R [First Amended Complaint, SarnsungElec. C0. v.lnterDigitalCommunications C0rp., No. 07-0167 (D. Del. Sept. l4, 2007)].) According to Apple, thecontractual commitments are made to ETSI and its members, including Apple, and are part of thequi pro quo for the standard-setting organization agreeing to consider standardizing technologiesthat may be covered by the FRAND deelarant's technology. (Id. at 25.) Under French law,argues Apple, those obligations, oncemade, prevent a party from later seeking to prevent abeneficiary of its commitment from selling products that practice its IPR. (id. (citing Mot., Ex. Pat {HI82-87).)

Apple argues that any attempt to obtain an exclusion or cease-and-desist order is contraryto Samsungs FRAND commitments as defined by the ESTSI IPR Policy and antithetical to thepurpose behind that policy. (Id.) Apple says that the ETSI IPR Policy is focused on ensuringthat patentees do not make essential lPR unavailable to implementers of the standard. (Id.)Apple says that Samsung has acknowledged this in prior litigation, contending that a partysenforcement of its intellectual property rights. . .(in seeking injunctive relief) .. .) and/or itsrefusal to grant a license to the Defendants on fair, reasonable and non-discriminatory terms is inbreach of the contractwhich exists between parties with common membership of ETSI. (Id.)That is what Samsung is attempting here, to use the threat of an exclusion order to makeunavailable to Apple the Declared-Essential Patents, in an effort to extract non-FRANDroyalties in contravention of the ETSI IPR Policy, according to Apple. (Id. at 25-26.)

Apple contends that the Commission may not impose remedies that complainant hasagreed not to seek. (Id. at 26 (citing Certain Rubber Antidegradants, Components Thereof AndProducts Containing Same, Inv. No. 337-TA-533, Commn Op. at 37 (July l3, 2006).) Here,argues Apple, Samsungs FRAND declarations constitute agreements not to seek an exclusion

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order or similar remedy and therefore Samsung should be held to those commitments. (Id. at26.)

Finally, argues Apple, although the Commission has previously declined to grant earlytermination based on various theories relating to FRAND commitments, those cases are readilydistinguishable because, unlike previous arguments, Apples motion does not turn on contestedissues of fact, but rather, is supported by unequivocal governing principles of French law asapplied to undisputed facts. (ld.) For example, argues Apple, in Certain 3GMobile Handsetsand Components, lnv. No. 33'7~TA-613,Where Samsung predicated its motion for summarydetermination on the fact-intensive doctrine of equitable estoppel, contending that Samsung hadrelied on InterDigitals FRAND commitments to its detriment and lnterDigital had failed to offerSarnsungFRAND license terms, because its licensing demand exceeded InterDigitalsappropriate share of the cumulative industry royalty, the Administrative Law Judge concludedthat the issues raised by Samsungs equitable estoppel defense are ripe with disputed factualissues. (Id. at 28 (citing Order No. 29 at 3-4 (April 14, 2008)).) Similarly, argues Apple, inCertain Semiconductor Chips and Products Containing Same, lnv. No. 337-TA-753, Broadeommoved for termination of the investigation for Rambuss patents for which FRAND declarationshad been made to the standard-setting organization PCI-SIG, and the Administrative Law Judgedenied the motion on the grounds that there were disputed issues of fact about whether Rambuswas actually bound by its FRAND commitments for its declared-essential patents. (ld.) Further,argues Apple, the Administrative Law Judge in that instance faulted Broadcom for failing toprovide any legal basis to support its motion. (ld.)

Apple says the circumstances are different in the matter at hand because there are nodisputes of fact, since Samsung has never contested that it made binding FRAND commitments

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requires that a {} (Id. (citing Ex. 16).)

Moreover, argues Samsung, even if Apple were a {

} (Id. (citing EX. l7).) In the matter at hand, argues Samsung,Apple brought infiingement claims against Samsung and, {

} (Id. (citing Mot., Ex.T).)

As for Apples argument that Samsungs obligations to ETSI prevent Samsung fromexercising its right to revoke the { } Sarnsung says its declarations to ETSI didnot establish a license between Sainsung and Apple, and, as such, there is no agreement betweenSamsung and Apple that would estop Samsung from terminating any rights Apple might haveenjoyed under the { }. (Id. at 27.) Moreover, says Samsung, no UnitedStates law supports Apples contention that Samsungs obligations to a standard-settingorganization estop it from exercising rights granted under some other agreement, and Apple citesnone. (Id.) As for Apples citation to a French tribunals decision concerning the assertion ofFrench patents, that is irrelevant, argues Sarnsung. (Id.) The { } is governedby California law, not French law, and the French tribunal did not analyze the contract underCalifornia law, says Samsung. Therefore, the decision in Federal Savings &Loan Insurance

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Corp. v. Grif/en, 935 F.2d 691, 698 (5th Cir. 1991), which states that choice-of-law provisionsincluded in contracts control, applies, argues Sarnsung. (ld. (also citing Federal Deposit Ins.Corp. v. Peterson, 770 F.2d 142 (10th Cir. 1985).)

Findings and conclusionsThe CommissionRules permit a party to move with any necessary supporting affidavits

for a summary determination in its favor upon all or any part of the issues to be determined in theinvestigation. 19C.P.R. 2l0.18(a). Summary determination shall be rendered if pleadingsand any depositions, answers to interrogatories, and admissions on file, together with theaffidavits, if any, show that there is no genuine issue as to any material fact and that the movingparty is entitled to a summary determination as a matter of law." 19 C.F.R. 210.18(1)).Summarydetermination under Commission Rule 210.18 is analogous to summary judgmentunder Federal Rule of Civil Procedure 56. See Certain Asian-StyleKamaboko Fish Cakes, lnv.No. 337-TA-378, Order No. 15 at 3 (U.S.I.T.C., May 21, 1996) (unreviewed initialdetermination).

The moving party bears the initial burden of establishing that there is an absence of agenuine issue ofmaterial fact and that it is entitled to judgment as a matter of law. Celotex Corp.v. Catren, 477 U.S. 317, 323 (1986). When such an initial showing is established, the burdenshifts to the opposing party, who must set forth specific facts showing that there is a genuineissue for trial. Anderson v.Liberty Lobby, 1nc., 477 U.S. 242, 256 (1986). To avoid summaryjudgment, the non-moving party must produce evidence of sufficient caliber to support judgmentin its favor. SeeAnderson, 477 U.S. at 252. If the responding party fails to make such ashowing, the moving party is then entitled to judgment as a matter of law. See Celotex, 477 U.S.at 325.

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Apples motion rests on two legal theories: (1) that Apple is a third-party beneficiary oftwo cross-licensing agreements executed by Samsung, one with {

},by virtue of which Samsungs patent rights have been exhausted and Samsung is notentitled to patent compensation from Apple; and (2) Samsung, as a member of the EuropeanTechnical Standards Institute, declared the asserted patents subject to that b0dys IntellectualProperty Rights Policy, thereby granting Apple, who is also a member, licenses to those patentsand therefore not subject to a Section 337 proceeding.

With respect to the first of these theories, involving cross-licenses, {} (Mot., Ex. C), the Federal Circuit has held that a patent is not exhausted where the

sale of the product alleged to embody the claimed invention Wasnot within the United States.Fuji Photo Film C0. Ltd. v. Jazz Photo C0rp., 394 F.3d l368, 1376 (Fed. Cir. 2005). Samsunghas produced a declaration of { } (Oppn, Ex.22) stating that the { } (the chips Apple accusesof infiingement (see Mot. Mem. at 12)) are developed by {

} by a purchase and transfertransaction, evidenced by invoice, and atterwards are sold to Apple by { }Wholly-owned subsidiary { }

Samsung notes that the evidence demonstrates that the sales of the accused chips occuroutside the United States, as evidenced by sales invoices showing that they were manufacturedby { }. (Oppn, Exs 22 [{ }Decl.], 42-45.) Sarnsung says the chips are then shipped from {

} (Oppn at 24 (citing Ex. 22C).) Although thesedocuments are diffieult to read, Ex. 22C is sufficiently legible to show that the chips that are the

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subject of this representative transaction were shipped from { }. ln contrast,Apple has not produced evidence showing that any relevant sales of the {

} chips took place in the United States. At minimum, there remains a legitimate issue of factas to whether Apples claim of exhaustion, as regards the { }, applies.Consequently, Apples motion in respect to Apples exhaustion claim as it pertains to the {

} is DENIED.Samsung has asserted an additional reason why Apples motion with respect to Apples

exhaustion defense as it concerns the { } should be denied. Samsung

contends that the {}, but the evidence does not reflect the fact that { } extended any of

its rights under the agreement to { }, the subsidiary that { } said is responsible fordeveloping the { ' } (see Oppn, Ex. 22). The { } Agreement (Mot,C at { } states:

{

}

This provision, according to its terms, is not self executing with respect to extending { }licenses to its subsidiaries; that is a right the exercise or non-exercise ofwhich lies with { }, asit might determine, based on business considerations unknown to strangers to its affairs; andtherefore, it is incumbent upon Apple to produce persuasive evidence that { } exercised theright, { }, by performing some affirmative act to that end. Apple hasnot produced any evidence that Wouldsupport that conclusion. For that reason aswell, Applesmotion in respect to exhaustion in the case of the { } is DENIED.

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With respect to Apples assertion that, by virtue of the { }, Samsungspatent rights have been exhausted by { }~,once again, theevidence of record is not sufficient to show that the sales of these items occurred in the UnitedStates, in accordance with the holding in Fuji Photo Film, 394 F.3d at 1376. Samsung hasproduced evidence that the {

}. (Oppn, Ex. 20 [{ }Depo.] at 33-35, 41.) This evidence, atminimum, raises an issue of fact regarding App1esexhaustion contentions, as they relate tolicenses extended by Samsung to { }, and for that reason, Apples motion in that respectis DENIED.

As for Apples contention that the {

}. (Mot, Ex. T { }.) Thistermination with respect to Apple Was {

} (Mot, Ex. G at { }.) Apple contends that by virtue of Samsungs membership inETSI, and its declaration with respect to the asserted patents, Samsungs actions were prohibitedunder ETSl [PR Policy. However, the { } provides, in { }~,asfollows: {

} (Id. at 25.) Therefore, any conflicts betweenETSI and French law with respect to Samsungs rights under the { }, insofaras such conflicts may bear upon App1esmotion in this investigation, are to be settled under the

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terms of that agreement, according to the express Willof the parties. Whether Samsungs actionwas or was not in accord with its ETSI obligations and declarations is for the appropriate tribunalto address, as provided by the governing ETSI body. The ETSI intellectual Property RightsPolicy, at Clause 14, Violation of Policy, states: Any violation of the POLICY by a MEMBERshall be deemed to be a breach, by that MEMBER, of its obligations to ETSI. The ETSI GeneralAssembly shall have the authority to decide the action to be taken, if any, against the MEMBERin breach, in accordance with the ETSI Statutes. But that is a different issue from whetherSamsung had the light to terminate {

}. There is no indication that { }protested Samsungs action or soughtjudicial redress in response; nor, for that matter, is there any indication that Apple, as a third-party beneficiary ostensibly having enforcement rights under the { }, soughtstrict performance or any other form of relief that was available under that agreement.Therefore, Apples motion with respect to Samsungs covenant not to sue is DENIED.

Turning to Apples motion as it concerns Samsungs membership in the EuropeanTelecommunications Standard Institute (ETSI) and Samsungs declarations made in relationthereto, the Administrative Law Judge concludes that both the facts and the law fail to supportsummary determination. Apple contends that, under controlling French law, it pertains toETSI TPRPolicy, Samsungs participation and declarations to ETSI created a license on behalfof Apple with respect to the 644 and 348patents, and at a minimum, Samsung agreed toforego, or else Waived,any right to seek an exclusionary remedy of the type available under 35U.S.C. 1337. Apple asserts that Samsungs obligations Withrespect to its involvement withETSI are governed under French law, which treats Samsungs actions as a license, regardless ofthe fact that, admittedly, no royalty rate was agreed upon between Samsung and Apple.

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However, the evidence shows that {

}. (See Oppn, Exs. 27-39.)

Apple contends that under French law, it was extended a license to the asserted patents by reasonof ETS1IPR Policy and San1sungsdeclarations with respect thereto, citing the report of its legalexpert, Nicolas Molfessis. (Mot, Ex. P.) Samsung disputes Apples assertion, citing thedeclaration of its legal expert, Remy Libchaber. (Oppn Ex. 41.)

The determination of foreign law is a question of law. Guardian Industries Corp. v. U.S.,477 F.3d 1386 (Fed. Cir. 2007). (See Fed. R. Civ. P. 44.1, Advisory Committee Notes.) Theevidence discloses that the price tenns for the licensing of San1sungspatents subject to ETS1were never agreedupon by Apple and Sarnsung. A license under French law is a lease of thingsor items. (Mot, P at 1136; Oppn, Ex. 41 at ll45; French Civil Code, Article 1709.) TheCour de cassation (the French Supreme Court) reportedly has ruled, pursuant to Article 1709 ofthe Civil Code, that a promise of lease can only be considered as a lease if it contains anagreement of the parties on the price. (See Oppn, Ex. 41 at 11SO(citing Civ. 3, 27 June 1973,Bull. H1,No. 446, p. 324; Civ. 3, 28 October 2009, Bull. III, No. 237; Civ. 3, 28 May 1997, Bull.III, No. 116, p. 77; Civ. 3, 20 May 1992, Bull HI, No. 152, p. 93; Civ.3, 7April 1976, Bull. Ill,No. 138, p. 111; Civ.3, 23 January 1970, Bulllll, No. 63, p. 45.) Although ,App1eslegal expertsuggests, based on analogy to French case law respecting service agreements, that contracts canbe fonned between parties Withoutan agreement on price, this is not persuasive, because servicecontracts involve different considerations, and the legal authority cited by Samsungs expert, thatprice is a necessary term for the formation of a contract, is more in point, and better reasoned.(See Oppn, Ex. 41 atW 47-50.) Furthermore, the ETS1 IPR Policy provides a rnechanisni for

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addressing amembers non-compliance with its licensing requirements, which includes non~recognition of the standard, rather than determining a defacto license. (Oppn, Ex. 2 at Clause8.2.) Furthermore, the ETSI Guidelines on IPRs specifically state, Specific licensing terms andnegotiations are commercial issues between the companies and shall not be addressed WithinETSI. (Oppn, Ex. 3 at Clause 4.1.) The remedy provided for a mernbers non-compliancewith the licensing provisions of ETSI IPR Policy and the Guideline provision just quoted areinconsistent with Apples constructive license argument.

For these reasons, Apples motion for summary determination terminating theinvestigation as to the 644 and 348 patents (Motion Docket No. 794-042) is DENIED.

Within seven days of the date of this document, each party shall submit to the Office ofthe Administrative Law Judges a statement as to whether or not it seeks to have any portion ofthis document deleted fiom the public version. The patties submissions may be made byfacsimile and/or hard copy by the aforementioned date.

Any party seeking to have any portion of this document deleted from the public versionthereof must submit to this office a copy of this document with red brackets clearly indicatingany portion asserted to contain confidential business information. The parties submissionsconcerning the public version of this document need not be filed with the Commission Secretary.

soORDERED Wm@E. James Gildea,Administrative Law Judge38


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CERTAIN ELECTRONIC DEVICES, 337-TA-794INCLUDING WIRELESS COMMUNICATIONDEVICES, PORTABLE MUSIC AND DATAPROCESSING DEVICES, ANDTABLETCOMPUTERSPUBLIC CERTIFICATE OF SERVICE

I, Lisa R. Barton, hereby certify that the attached ORDER has been served by hand upon theCommission Investigative Attorney, Lisa Murray, Esq., and the following parties as indicatedOn May 11 ,2()12.

Lisa R. Barton VActing Secretary to the CommissionU.S. International Trade Commission500E Street, SW, Room ll2AWashington, D.C. 20436

ON BEHALF OF COMPLAINANTS SAMSUNG ELECTRONICS CO., LTD. ANDSAMSUNG TELECOMMUNICATIONS AMERICA. LLC:S. Alex Lasher, Esq. ( ) Via Hand DeliveryQUINN EMANUEL URQUHART & ( ) Via Oveniight MailSULLIVAN, LLP ('\) Via First Class Mail1299 Pennsylvania Ave., NW ( ) Other: _ #__Suite 825Washington, DC 20004(202) 538-8104

ON BEHALF OF RESPONDENT APPLE INC.:_Nina S. Tallon, Esq. ( ) Via Hand DeliveryWILMER CUTLER PICKERING ( ) Via OvernightMailHALE ANDDORR LLP (\) Via First Class Maill875 Pennsylvania Ave. NW ( ) Other:Washington, DC 20006(202) 663-6000

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UBLIC MAILINGHeather HallLEXIS NFXIS9443 Spnngboro PikeI\/I1211'I11SbLlTg,H 45342

Kenneth ClairTHOMSON WEST1100 13th Street, NW Suite 200Washington, DC 20005

CERTAIN ELECTRONIC DEVICES, 337-TA-794INCLUDINGWIRF LESS COMMUNICATIONDEVICES PORTABLE MLSIC ANDDATAPROCESSING DEVICES, ANDTABLETCOMPUTERS

P( ) Via Hand Delivery( ) Via Overnight Mail(\) Via First Class Mail( ) Other:________

( ) Via Hand Delivery( ) Via Overnight Mail(\) Via First ClassMail( ) Other:

12-03-30 itc initial determination denying apple summary determination against samsung

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