Elan Microelectronics Corporation v. Apple, Inc.

Filing 375

Declaration of Derek C. Walter In Support of Apple Inc.'s Motion for Partial Summary Judgment of Non-Infringement of Elan's '352 Patent by Apple's Current Products filed byApple, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 3, # 3 Exhibit 14)(Greenblatt, Nathan) (Filed on 8/4/2011)

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EXHIBIT 14 CONTAINS CONFIDENTIAL BUSINESS INFORMATION SUBJECT TO PROTECTIVE ORDER UNITED STATES INTERNATIONAL TRADE COMMISSION Washington, D.C. Before The Honorable Paul J. Luckern Chief Administrative Law Judge In the Matter of CERTAIN ELECTRONIC DEVICES WITH MULTI-TOUCH ENABLED TOUCHPADS AND TOUCHSCREENS Investigation No. 337-TA-714 ELAN’S RESPONSE TO APPLE’S MOTION IN LIMINE NO. 3 (MOT. DKT. NO. 714-034) Complainant Elan Microelectronics Corporation (“Elan”) respectfully submits this response to Apple’s third motion in limine, which seeks to exclude an infringement theory that Elan has not alleged and to bar Elan’s request for a limited exclusion order, a cease and desist order, and a bond during the Presidential Review Period because these well-pleaded and commonplace remedial requests would somehow cause “unfair surprise[]” (Apple Mem. at 1). Apple’s latest attempt to distract Elan’s counsel from its trial preparations mischaracterizes the record and should be denied.1 1 Apple’s Ground Rule 3(ii) certification misstates Elan’s position (see Apple Mot. at 1). Apple filed the instant motion in limine before Elan provided its position. Had Apple been more patient and complied with the applicable ground rule, at least the first half of this motion would have been unnecessary. 1 CONTAINS CONFIDENTIAL BUSINESS INFORMATION SUBJECT TO PROTECTIVE ORDER I. ELAN HAS NOT AND WILL NOT PRESENT A THEORY OF INFRINGEMENT UNDER THE DOCTRINE OF EQUIVALENTS Apple spends five pages of its supporting memorandum opposing a hypothetical doctrine of equivalents infringement theory that Elan has not raised and will not raise. Apple’s motion in this regard should be denied as moot.2 II. ELAN’S PURSUIT OF THE STATUTORY RELIEF AVAILABLE UNDER SECTION 337 CANNOT CONSTITUTE AN “UNFAIR SURPRISE[]” 2 Apple points to a February 7, 2011 e-mail that it misstates as requesting confirmation that Elan will not pursue the doctrine of equivalents (see Apple Mot. Exh. 1). To the contrary, the email only requests that Elan notify Apple if it did intend to pursue such an infringement theory. 2 CONTAINS CONFIDENTIAL BUSINESS INFORMATION SUBJECT TO PROTECTIVE ORDER CONCLUSION Apple’s motion as to infringement theories under the doctrine of equivalents should be denied as moot because Elan has not offered and will not offer any such theories. Apple’s 3

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