On June 25, 2015, July 14, 2015, and July 17, 2015, ALJ Thomas B. Pender issued the public versions of Order Nos. 26, 33, and 34, respectively, in Certain Windshield Wipers and Components Thereof (Inv. No. 337-TA/928/937).  Please note that Oblon represents Complainants in this matter.

By way of background, the investigation is based on July 25, 2014 and October 15, 2014 complaints filed by Valeo North America, Inc. of Troy, Michigan and Delmex de Juarez S. de R.L. de C.V. of Mexico (collectively, "Valeo") alleging violation of Section 337 by Trico Products Corporation and Trico Componentes SA de CV (collectively, "Trico") in the importation into the U.S. and sale of certain windshield wipers and components thereof.  See our August 1, 2014August 28, 2014October 16, 2014, and November 19, 2014 posts for more details on the complaints and Notices of Investigation in the 928 and 937 investigations.  On December 9, 2014, ALJ Pender consolidated the 928 and 937 investigations. See our December 15, 2014 post for more details. 

According to Order No. 26, Valeo filed a motion to strike certain exhibits and testimony relating to Peugeot 307 CC on the basis that such exhibits and testimony were excluded by Order No. 20.  Additionally, Valeo filed a motion for sanctions in connection with its motion to strike.  ALJ Pender held that that Order No. 20 only prevents Trico from asserting that evidence as invalidating prior art.  However, the Peugeot 307 CC exhibits and testimony can be used for other purposes, such as impeachment and corroboration.  Accordingly, ALJ Pender denied Valeo's motion to strike and motion for sanctions.

According to Order No. 33, Valeo filed a motion to strike certain portions of the direct witness statements of Gregory Davis (the "Davis Statement") and Paul Wozniak (the "Wozniak Statement") because they were offered in violation of Order No. 23 and included testimony that was not previously disclosed in Trico's invalidity contentions.  In opposition, Trico asserted that Valeo's motion was moot with respect to certain sections of the witness statements because they agreed to withdraw the sections.  Regarding the remaining portions of the witness statements at issue, Trico argued that the exhibits and testimony were not stricken by Order No. 23 and/or were within the scope of Trico's initial or supplemental invalidity contentions.

Valeo first argued that that certain sections of the witness statements must be stricken in accordance with Order No. 23 because they contain improper new matter, indefiniteness, and lack of written description testimony.  ALJ Pender held that these arguments were moot or otherwise denied because the sections at issue in the witness statements were either withdrawn by Trico or not in violation of Order No. 23.  Valeo next argued that certain sections of the Davis Statement should be stricken because they relate to claim constructions that were not disclosed during Markman briefing.  ALJ Pender denied this argument because the claim construction arguments were disclosed in the Davis expert report.  Valeo then argued that certain figures and images submitted with the Davis and Wozniak Statements should be stricken because they have not been admitted into evidence.  ALJ Pender denied this argument and held that objections to the admissibility of the figures and images can be raised later in the proceeding.  Valeo next argued that Trico's 3D print model and related witness statement sections should be stricken because they are unreliable and were not previously produced.  ALJ Pender denied Valeo's request and held that Valeo's arguments go to weight rather than admissibility.  Valeo then argued that certain sections of the Davis Statement should be stricken because they relate to improper inequitable conduct testimony.  ALJ Pender agreed with Trico that the evidence could be relevant to invalidity and, therefore, would not be stricken.

Next, ALJ Pender addressed Valeo's arguments related to undisclosed prior art.  Valeo first argued that several exhibits should be stricken because they were not disclosed in Trico's invalidity contentions.  Additionally, Valeo argued that the related sections of the Wozniak Statement should be stricken.  Except for RX138C, ALJ Pender accepted Trico's argument that references could be used for a non-prior art reasons and denied Valeo's motion to strike these exhibits.  ALJ Pender granted Valeo's motion with respect to RX-138C because the reference used in the claim chart was the subject of Order No. 20, which prevented Trico from asserting the reference as invalidating prior art.  Additionally, ALJ Pender agreed with Valeo's arguments regarding certain sections of the Wozniak Statement.  Specifically, ALJ Pender held that several sections at issue are improper expert testimony in a fact witness statement.  ALJ Pender denied Valeo's motion with respect to the other exhibits at issue because the references could be used for other permissible purposes.  Accordingly, ALJ Pender granted-in-part and denied-in-part Valeo's motion to strike.

According to Order No. 34, Valeo filed a motion to strike certain testimony or evidence from certain of Trico's rebuttal witness statements.  Valeo argued that certain sections of the rebuttal statements should be stricken because they include testimony on the undisclosed 842 and 843 adapters.  ALJ Pender agreed with Valeo and held that the sections of the rebuttal witness statements relating to adapters 842 and 843 should be stricken as confusing and prejudicial.  Valeo next moved to strike several sections of the rebuttal witness statements because they improperly include images and figures that were not admitted into evidence.  ALJ Pender denied Valeo's argument and held that it is premature to rule on the admissibility of the figures and images.  Lastly, Valeo argued that certain sections of the Wozniak Rebuttal Witness Statement should be stricken because they improperly include expert testimony in a fact witness statement.  ALJ Pender agreed with Valeo that the sections at issue improperly included expert witness testimony and held that these sections should be stricken.  Accordingly, ALJ Pender granted-in-part and denied-in-part Valeo's motion to strike.