On September 5, 2013, Chief ALJ Charles E. Bullock issued Order Nos. 76 (dated August 15, 2013) and 80 (dated August 20, 2013) in Certain Wiper Blades (Inv. No. 337-TA-816).
According to Order No. 76, Complainant Robert Bosch LLC (“Bosch’) moved to strike certain portions of the Supplemental Expert Report of Walter Cempura (the “Cempura Report”) and the Supplemental Initial Expert Report of Gregory Davis (the “Davis Report”). Bosch argued that portions of the Davis Report rely on references not identified in Respondents ADM21 Co., Ltd., ADM21 Co. (North America), Ltd., Cequent Consumer Products, Inc., RainEater LLC, Corea Autoparts Producing Corporation, CAP America, and PIAA Corporation USA’s (collectively, “Respondents”) Notices of Prior Art. Additionally, Bosch asserted that portions of the Davis and Cempura Reports fell outside of the agreed-upon scope of supplementation.
In opposition, Respondents argued that Bosch was given adequate notice of all references relied on in the supplemental expert reports. Specifically, Respondents asserted that the Swanepoel prototypes were listed in the Notices of Prior Art as “Variflex Wiper Blades.” Respondents asserted that Bosch was given notice of the U.S. patent reference at issue because Respondents relied on a Board of Patent Appeals and Interferences opinion that discussed the U.S. patent. Lastly, Respondents argued that the foreign patent application at issue was not being used for purposes of invalidity. Regarding Bosch’s arguments that the supplemental expert reports at issue exceeded the scope supplementation, Respondents’ asserted that both reports were limited to theories and arguments that were affected by the Commission’s expanded claim construction ruling.
ALJ Bullock determined that Bosch was afforded adequate notice of the Swanepoel prototypes because they were listed on the Notices of Prior Art. However, ALJ Bullock held that Bosch was not given adequate notice of the other references at issue. Regarding Bosch’s scope of supplementation arguments, ALJ Bullock agreed that the Davis report exceeded the scope of supplementation by discussing a reference not listed in Respondents’ Notices of Prior Art. As to the Cempura Report, ALJ Bullock held that the supplemental discussion related to the Commission’s expanded claim construction and, therefore, was within the agreed-upon scope of supplementation. Accordingly, ALJ Bullock granted-in-part Bosch’s Motion to Stike.
According to Order No. 80, Bosch moved for reconsideration of Order No. 73, which denied Bosch’s motion for leave to serve a supplemental expert report. Bosch argued that Order No. 73 was predicated on two errors of fact. First, Bosch asserted that Order No. 73 incorrectly held that Bosch knew that Respondents intended to rely on force distribution testing of the Worktools Wiper Blade on June 29, 2012. Second, Bosch averred that Order No. 73 errantly held that Dr. Dubowsky inquired about the Worktools Wiper Blade on June 14, 2013.
In opposition, Respondents and the Commission Investigative Staff (“OUII”) argued that Bosch’s motion for reconsideration “simply rehashes the same exact argument that was previously presented.”
ALJ Bullock agreed with Respondents and OUII, holding that Bosch failed to show that there were any errors of fact in Order No. 73. Accordingly, ALJ Bullock denied Bosch’s Motion for Reconsideration.