ITC Judge Calls 3,000-Page Patent Fight Submission from Apple 'Unacceptable'

Lawyers for Apple Inc. have until the end of the day to turn 3,000 pages of material into a simple chart after an administrative law judge at the International Trade Commission struck the massive filing as "unacceptable."

The order by Administrative Law Judge E. James Gildea, as noted by the Foss Patents blog, comes amidst a bitter patent fight pitting Samsung Electronics Co. against Apple over standard-essential patents used in iPhones, iPods and iPads. If Apple is found to have infringed on Samsung’s patents, the ITC could ban importation of the products.

Apple counsel from Wilmer Cutler Pickering Hale and Dorr had been instructed to submit a prehearing statement correlating patent claims to the accused products or prior art. “The rule sets forth sample charts so that there can be no confusion as to what data is required,” Gildea wrote. “Other parties in other investigations have not had any trouble understanding the requirements.”

Indeed, he pointed out, Samsung counsel from Quinn Emanuel Urquhart & Sullivan submitted a one-page chart providing the information as requested.

But not Apple. “Instead of submitting the very simple requested chart…Respondent has submitted over 3,000 pages of attachments with its limitation by limitation invalidity analysis,” Gildea wrote on May 4. He rejected the submission, noting that “all analysis of invalidity belong in the prehearing brief,” and further, that “the pre-hearing brief page requirement should not be bypassed with attachments.” The judge gave Apple until close of business on May 8 to submit a chart instead.

It’s not the first time Gildea has rejected one of Apple’s submissions in the case, which was filed in June 2011. In March, he struck Apple’s 380-page notice of prior art in its entirety. “The procedural schedule is carefully designed to have the parties formulate, disclose, and solidify their positions with respect to invalidity and claim construction early in the investigation,” he wrote. “Respondent’s Notice, containing an excess of 7,000 entries, renders this precisely crafted schedule meaningless.”

He gave Apple the chance to re-file the notice, with firm instructions that the amended document had to meet four requirements. “The Administrative Law Judge finds that [Apple’s] Amended Notice fails to meet the requirements,” he wrote on April 16, and again ordered it stricken. Gildea also noted that Samsung pointed out the problem to Apple, “yet instead of promptly seeking to fix its error, Respondent chose to fight with Complainants.”

In court papers, 11 lawyers from Wilmer are listed as counsel to Apple, with former co-managing partner William Lee topping the list. Lee and a Wilmer spokeswoman did not immediately respond to requests for comment.

Gildea, who cited the “size and complexity of this Investigation, as well as its unusually adversarial nature,” has set a deadline of Sept. 14, 2012 to issue a final initial determination in the case, number 337-794.

Comments

[A Facebook User]

This is a win-win for Wilmer Cutler. The firm gets to charge Apple for all the hours spent putting together the obviously excessive 3000 page submission, and then it gets to charge Apple for all the hours spent putting together the chart when the 3000 page submission is rejected. Ka-ching!

[Kay Sieverding]

As a pro se litigant, I have had huge problems with being accused of writing documents that are too long. This is partially because I had a fact intensive case to begin with which became more fact intensive because there were all sorts of due process violations so then I had to try to explain what should have happened and what did happen. Since so far I never got as far as discovery, and I am always alleging fraud, I tended to add detail in the pleadings. In Apple's case they probably assume that the judge won't read it; I've never heard of even a pro se litigant filing something that long.

My magistrate's report and recommendation was 59 pages and I found that very difficult to follow and use.

So my suggestion is that ECF should be set up so that litigants file summary documents and that then these could link to supplemental documents. ECF could create an outline format with section headings that would be easy for everyone to follow.

Also, I think that all documents should have page lengths so everyone knows. For complaints it could be based on the number of defendants or the number of claims. I think these should all be separately entered and that the defendants and judge should separately respond to each one.