On May 7, 2013, ALJ E. James Gildea issued the public version of Order No. 20 (dated April 29, 2013) denying Complainants Samsung Electronics Co., Ltd. and Samsung Telecommunications America, LLC’s (collectively, “Samsung”) motion to strike Respondents Ericsson Inc. and Telefonaktiebolaget LM Ericsson’s (collectively, “Ericsson”) inequitable conduct defense in Certain Wireless Communications Equipment and Articles Therein (Inv. No. 337-TA-866).

According to the Order, Samsung argued that Ericsson should be required to use a heightened pleading standard in raising an inequitable conduct defense (relying on district court rules, the Federal Circuit’s discussion of those rules, and the opinions of other ALJs), and that Ericsson’s inequitable conduct defense as pled is inadequate and should be stricken.  Ericsson countered that (1) the Commission does not require a heightened pleading standard for inequitable conduct, and neither do many ALJs; (2) it pled inequitable conduct based on the information it then had available, and that Samsung has withheld relevant discovery that would allow Ericsson to develop its contentions in more detail; (3) even if held to a heightened pleading standard, its response contains 20 pages of details that satisfy the standard; and (4) it should have the opportunity to supplement its defense after obtaining the discovery requested from Samsung.  The Commission Investigative Staff opposed the motion, maintaining that a heightened pleading standard is appropriate, that Ericsson’s inequitable conduct defense is insufficient under that standard, and that Ericsson should be required to supplement its response with additional factual support.

Citing Commission Rule 210.13(b) which states that “[a]ffirmative defenses shall be plead with as much specificity as possibly in the response” and that “[f]or good cause shown, the presiding administrative law  judge may waive any of the substantive requirements imposed under this paragraph or may impose additional requirements,” ALJ Gildea found that the degree of pleading required falls within the ALJ’s discretion.  ALJ Gildea also noted that none of the parties examined his own precedent with respect to inequitable conduct issues, in which he has never required a heightened pleading standard and has generally permitted respondents to amend or add those defenses to ensure a complete record.  In fact, as the ALJ observed, in Certain Ceramic Capacitors and Production Containing Same (Inv. No. 337-TA-692), Respondents Samsung Electro-Mechanics Co., Ltd. and Samsung Electro-Mechanics America, Inc. benefited from these preferences.  Thus, the motion was denied without prejudice to Samsung raising the issue in another manner after discovery on the issue has moved forward.