On August 3, 2015, ALJ Dee Lord issued the public version of Order No. 16 (dated July 22, 2015) denying Complainants' motion to compel supplemental responses to Complainants' Requests for Admission Nos. 1-558 in Certain Wireless Standard Compliant Electronic Devices Including Communication Devices and Tablet Computers (Inv. No. 337-TA-953).

By way of background, this investigation is based on a February 26, 2015 complaint filed by Ericsson Inc. and Telefonaktiebolaget LM Ericsson (collectively, "Ericsson") alleging violation by Apple Inc. a/k/a Apple Computer Inc. ("Apple") of Section 337 in the importation into the U.S. and sale of certain wireless standard compliant electronic devices, including communication devices and tablet computers that infringe one or more claims of U.S. Patent Nos. 8,717,996; 8,660,270; 6,058,359; 6,301,556; 8,102,805; 8,607,130; 8,837,381; and 8,331,476 (collectively, "the asserted patents").  See our March 3, 2015 and April 3, 2015 posts for more details on the complaint and notice of investigation, respectively. 

According to the Order, Ericsson filed a motion to compel Apple to supplement its Responses to Ericsson's Requests for Admission Nos. 1-558 to fairly admit or deny whether the Accused Products are compliant with certain 3GPP and GSM standards sections and releases.  Ericsson's complaint specifically alleges that the asserted patents are essential to certain wireless standards, including the 3GPP LTE Series of standards, the 2G standards, and the 3GPP 36 LTE Series of standards.  Ericsson's first Requests for Admission, numbered 1-558, relate to the practice of those standards by certain accused Apple products.  Apple responded to the Requests, refusing to admit or deny them and objecting to each of the requests as being vague and ambiguous and as relating to information that was outside of Apple's custody and control.

Ericsson argued that Apple had no proper excuse for refusing to answer the disputed Requests because Apple performs testing on the wireless functionality of its products and publically represents that its products support LTE and comply with GSM.  Apple, however, argued that the testing it performs does not determine whether the products are capable of practicing subsets of the design specifications for wireless standards.  Thus, Apple argued that it would need to perform additional testing and analysis in order to answer Ericsson's Requests. Accordingly, Apple argued that it is unable to admit or deny the Requests.  In reply, Ericsson argued that it would be reasonable for Apple to perform the additional analysis.

After reviewing the evidence and papers, including the cited design specifications and testing documents, ALJ Lord found that Ericsson had mischaracterized the burden on Apple.  ALJ Lord noted that the testing specifications and Apple's third-party testing reports do not show any direct connection to specific sections of design specifications and that, although certain specifications are short, they contain pseudocode and mathematical formulas supporting Apple's argument that technical analysis and source code review would be necessary to answer Ericsson's Requests.  ALJ Lord thus found that an answer requiring such analysis was not "readily obtainable" under Commission Rule 210.31(b) and denied Ericsson's motion with respect to Requests 1-556.

ALJ Lord also found that Apple had raised legitimate objections to Requests 557 and 558 as vague and ambiguous and denied Ericsson's motion as to Requests 557 and 558.  ALJ Lord rejected, however, Apple's other arguments regarding vagueness and the ultimate issue in the case.  ALJ Lord specifically noted that Apple erroneously inserted the term "every" into its arguments and objections and that the Requests d id not seek admissions on the ultimate issues in the case.