Mosaic ImmunoEngineering is a nanotechnology-based immunotherapy company developing therapeutics and vaccines to positively impact the lives of patients and their families.
Message: Nintendo Motion (letter from Otteson not copied here)
Pursuant to Commission Rule 210.15 and Ground Rule 2.1, Respondents Nintendo Co.,
Ltd. and Nintendo of America Inc. (collectively, "Nintendo") move for leave to file a reply in
support of Respondents' Motion in Limine No. 1 to preclude trial testimony from non-parties
Texas Instruments Inc. ("TI") and Baher Haroun (Mot. Dkt. No. 853-053).
Nintendo submits that there is good cause to permit its proposed reply in order to clarify
that many factual representations made in Complainants' Opposition relate to issues that are
irrelevant to the accused Nintendo products. A reply is also warranted to address certain
erroneous legal arguments offered by Complainants.
Pursuant to Ground Rule 2.2, Nintendo certifies that it, through counsel, notified
Complainants, Respondents, and the Commission Investigative Attorney ("Staff") about this
Motion before filing and offered to meet and confer in attempt to reach a resolution. Staff has
reserved its position and Complainants have indicated that they oppose.
RESPONDENTS NINTENDO CO., LTD. AND NINTENDO OF
AMERICA INC.'S [PROPOSED] REPLY IN SUPPORT OF RESPONDENTS'
MOTION IN LIMINE NO. 1 TO PRECLUDE TESTIMONY FROM
NON-PARTIES TEXAS INSTRUMENTS INC. AND BAHER HAROUN
Complainants’ attempt to call TI witnesses at trial is another improper effort to
supplement Dr. Oklobdzija's expert report that is likewise "a day late and a dollar short." See
Order No. 43 at 13 n.17.
Complainants argue that TI’s alleged “discovery errors” justify calling TI witnesses at
trial to elicit new facts never sought or disclosed in discovery. See, e.g., Opp. at 1, 3. However,
these alleged discovery errors by TI pertain only to the OMAP chips – they have nothing to do
with the audio codecs, the only TI components used in Nintendo's accused products. See, e.g.,
id. at 2-3 (reliance on communications with TI that pertain only to the OMAP chips). As
detailed in TI's Motion to Quash, Complainants abandoned discovery of the audio codecs. See
TI Motion to Quash at 5 (Mot. Dkt. No. 853-047). Tellingly, Complainants do not dispute that
they never requested deposition testimony or documents from TI specifically related to the
audio codecs
after serving their subpoena. Nor did Complainants move to compel TI to provide
such discovery. Complainants' opposition does not even attempt to excuse their discovery
failure with respect to the accused audio codecs.1
Most importantly, Complainants readily admit that in violation of the Ground Rules, they
intend to use the TI witnesses' testimony as a "predicate" for new opinion testimony to be
offered by their expert at the hearing. See May 8, 2013 Email from TPL Counsel, attached as
Ex. A; G.R. 9.5.6. Complainants try to justify their strategy of trial by ambush by relying on the
fact that they listed a generic "TI Representative" on their witness list. Opp. at 4. However, as
the Staff observes, the crux of the issue is not whether Complainants disclosed that TI witnesses
might testify, but whether they disclosed the substance of that testimony in discovery. See Staff
Resp. at 2. Because Complainants want to use the TI testimony as a factual basis for
infringement opinions, they were required to disclose the facts they intend to elicit in their
contention interrogatory responses and expert report. Complainants concede that they have
never cited to or indicated they might rely on any evidence from TI against Nintendo, but
remarkably, maintain that they are entitled to hide factual bases for their expert's opinion until
trial. See Opp. at 5 n.5 (“Whether Complainants have, or have [sic] cited, TI documents relating
to audio codec chips does not impact whether or not it is appropriate to call a TI witness at
trial.”).
As the Staff observes, and as the ALJ's Ground Rules make clear, Complainants' failure
to disclose the facts they intend to elicit from TI to prove infringement deprived Respondents of
adequate notice.2
Staff Resp. at 2-3; G.R. 3.4.2 ("parties are expected to affirmatively and timely
provide their full contentions"); G.R. 5 (expert reports "shall contain … the data or other
information considered by the witness in forming the opinions"). Oral supplementation of
infringement opinions against Nintendo at trial is just as prejudicial as Complainants' prior
attempts at supplementation, and should be precluded under the same reasoning already applied
by the ALJ. See, e.g., Order No. 40 at 6 (supplemental expert reports may be appropriate on
issues for which "an expert could not previously have rendered an opinion for lack of notice");
Order No. 43 at 17 n.21 ("a party cannot evade the discovery cutoff by introducing untimely
disclosed evidence in a subsequent expert report"); Order No. 45 at 5 (striking portions of
Complainants' expert declaration that "includes opinions that could and should have been set
forth in Dr. Oklobdzija's initial expert report").
For these and the further reasons detailed in Respondents' Motion, Nintendo respectfully
requests that the Administrative Law Judge preclude the TI witnesses from testifying at trial
regarding the TI audio codecs or the Nintendo accused products.
Dated: May 17, 2013 Respectfully submitted,
/s/
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