Elan Microelectronics Corporation v. Apple, Inc.

Filing 427

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 9/14/2011)

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