UNITED STATES INTERNATIONAL TRADE COMMISSION
`WASHINGTON, D.C.
`
`Before the Honorable Charles E. Bullock
`Chief Administrative Law Judge
`
`
`
`In the Matter of
`
`CERTAIN MOTORIZED SELF-
`BALANCING VEHICLES
`
`Investigation No. 337-TA-1000
`
`RESPONDENTS POWERBOARD LLC'S AND JETSON ELECTRIC BIKES, LLC'S
`CORRECTED MOTION FOR LEAVE TO FILE OUT OF TIME
`
`Pursuant to Rules 201.3, 201.14(b)(2) and 210.37 of the United States International Trade
`
`Commission (“Commission”), 19 C.F.R. § 210.37 and Ground Rule 9, Respondents Powerboard
`
`LLC (“Powerboard”) and Jetson Electric Bikes, LLC (“Jetson”) hereby move for leave to file out
`
`of time the Witness Statement of Jason Janét. As explained below, good cause exists for granting
`
`leave to file its response out of time because Complainants Razor Razor USA LLC, Inventist, Inc.,
`
`and Shane Chen (collectively, “Complainants”) have continued their hide-the-ball and reverse the
`
`burden of proof tactics exemplified by their unresponsive Interrogatory Answers, and by their
`
`motion to Strike the Janét Expert Report that led to Powerboard’s and Jetson’s still-pending
`
`Opposition to Complainants’ Motion to Strike Powerboard's and Jetson's Expert Report of Jason
`
`Janét and Testimony ("Motion to Strike"). To err on the side of caution, Powerboard and Jetson
`
`must file a witness statement to protect itself against grant of the Motion to Strike in spite of
`
`Complainants’ failure in its witness statement of Complainants’ Expert Richter to present evidence
`
`of infringement by Powerboard and Jetson.
`
`GROUND RULE 5(e) CERTIFICATION
`
`Counsel for Powerboard certify that they have made reasonable, good-faith efforts to
`
`contact and resolve the matter with Complainants, Staff, and Respondents represented by counsel
`
`1
`
`
`WASHINGTON, D.C.
`
`Before the Honorable Charles E. Bullock
`Chief Administrative Law Judge
`
`
`
`In the Matter of
`
`CERTAIN MOTORIZED SELF-
`BALANCING VEHICLES
`
`Investigation No. 337-TA-1000
`
`RESPONDENTS POWERBOARD LLC'S AND JETSON ELECTRIC BIKES, LLC'S
`CORRECTED MOTION FOR LEAVE TO FILE OUT OF TIME
`
`Pursuant to Rules 201.3, 201.14(b)(2) and 210.37 of the United States International Trade
`
`Commission (“Commission”), 19 C.F.R. § 210.37 and Ground Rule 9, Respondents Powerboard
`
`LLC (“Powerboard”) and Jetson Electric Bikes, LLC (“Jetson”) hereby move for leave to file out
`
`of time the Witness Statement of Jason Janét. As explained below, good cause exists for granting
`
`leave to file its response out of time because Complainants Razor Razor USA LLC, Inventist, Inc.,
`
`and Shane Chen (collectively, “Complainants”) have continued their hide-the-ball and reverse the
`
`burden of proof tactics exemplified by their unresponsive Interrogatory Answers, and by their
`
`motion to Strike the Janét Expert Report that led to Powerboard’s and Jetson’s still-pending
`
`Opposition to Complainants’ Motion to Strike Powerboard's and Jetson's Expert Report of Jason
`
`Janét and Testimony ("Motion to Strike"). To err on the side of caution, Powerboard and Jetson
`
`must file a witness statement to protect itself against grant of the Motion to Strike in spite of
`
`Complainants’ failure in its witness statement of Complainants’ Expert Richter to present evidence
`
`of infringement by Powerboard and Jetson.
`
`GROUND RULE 5(e) CERTIFICATION
`
`Counsel for Powerboard certify that they have made reasonable, good-faith efforts to
`
`contact and resolve the matter with Complainants, Staff, and Respondents represented by counsel
`
`1
`
`
`
`
`
`on January 9, 2017. Complainants oppose the motion, but have agreed to waive the 2 day
`
`requirement of Ground Rule 3.2; Staff opposes this motion.
`
`STATEMENT OF FACTS
`
`In Powerboard’s and Jetson's Opposition to Complainants’ Motion to Strike, Powerboard
`
`and Jetson detailed the chronology of (1) Complainants’ unresponsive answers to Powerboard’s
`
`contention interrogatories, making it impossible for Powerboard to oppose Complainants’ answers
`
`to Powerboard’s interrogatories, and (2) Complainants’ expert Richter’s failure to set forth its
`
`contention theories in his Expert Report. Now Complainants’ Expert’s Witness Statement
`
`continues its evidence-free accusation of infringement by Powerboard and Jetson. It does so with
`
`the repeated use of the clever rhetorical device of framing Richter’s testimony in terms of questions
`
`whether Powerboard “disputed during fact discovery” various elements of claims that if supported
`
`by evidence might constitute infringement. At pp. 188, 189, 194-200.
`
`Whether Powerboard disputed something during fact discovery is not evidence of
`
`infringement, particularly given that Razor did not allege what was not disputed.
`
`ARGUMENT
`
`On December 16, 2016, Complainants filed a Motion to Strike Powerboard's and Jetson's
`
`Expert Report of Jason Janét and Testimony ("Motion to Strike"). Respondents Powerboard and
`
`Jetson timely filed their Opposition to the Motion to Strike on December 27, 2016. On December
`
`28, 2016, Complainants gave notice of their intention to move for leave to file a Reply to the
`
`Powerboard and Jetson Opposition to Complainants' Motion to Strike. The Parties have not met
`
`and conferred on that motion for leave, and evidently Complainants have neither filed such a
`
`motion for leave nor filed a Reply to the Powerboard and Jetson Opposition to Complainants'
`
`Motion to Strike. As of this filing, no Order has issued on the Motion to Strike.
`
`2
`
`
`
`
`
`With the pendency of the motion to strike, and the failure of Complainants' witness
`
`statement to introduce evidence of infringement (only the “failure to dispute during discovery”
`
`mantra,) Powerboard cannot be assured that Complainants' lack of evidence will not carry the day.
`
`This would turn the burden of proof on its head and greatly prejudice both Powerboard and Jetson.
`
`Failure to dispute something unalleged during discovery cannot be a substitute for evidence of
`
`infringement.
`
`First, Powerboard cannot possibly dispute what Razor did not allege – to require it to do
`
`so would require mind-reading and disputing every possible permutation of possible facts that
`
`could conceivably establish infringement.
`
`Second, if making counter-arguments to allegations not made during fact discovery were
`
`fatal to an expert report, then what exactly is the point of expert rebuttal testimony during the
`
`expert witness phase of pre-trial.
`
`Third, similarly, if making counter arguments to an alleged failure to dispute something
`
`during fact discovery establishes such facts, then the system would promote the very opposite of
`
`what it requires, that the Complainant fully disclose the facts and arguments on which it has the
`
`burdens of production and proof.
`
`The potential adoption of the Richter witness statement's mantra without an opposing
`
`statement constitutes Good cause exists for granting Powerboard and Jetson leave to file its
`
`Witness Statement out of time because of the confusion and uncertainty generated by the above
`
`unresolved Motion to Strike. No prejudice was occasioned by Powerboard’s uncertainty regarding
`
`the unresolved Motion to Strike. Further in support of Respondents' Motion for Leave to File the
`
`Witness Statement Out of Time, it is noted that the attached Witness Statement merely re-states
`
`prior submissions of Dr. Jason Janét, including his Expert Report served on November 22, 2016,
`
`3
`
`
`
`
`
`and his statement in support of Respondent’s Motion for Summary Determination served on
`
`December 12, 2016, and filed on December 13, 2016. Therefore, the reasons for non-infringement
`
`in the attached Witness Statement have already been provided to Complainants in these 2 prior
`
`submissions. Accordingly, Complainants have been aware of these reasons for non-infringement
`
`by Dr. Janét well before the due date of the Witness Statement. Thus, there can be no prejudice to
`
`the Complainants that the Witness Statement contains new arguments.
`
`For the foregoing reasons, Respondents Powerboard and Jetson respectfully request the
`
`CONCLUSION
`
`Chief ALJ Bullock grant the motion for leave to file out of time.
`
`
`Dated: January 11, 2016
`
`Respectfully submitted,
`
`
`
`
`
`/s/ L. Peter Farkas
`L. Peter Farkas
`Russell O. Paige
`Farkas + Toikka LLP
`1101 30th St. NW, Suite 500
`Washington, DC 20007
`Tel: (202) 337-7200
`Fax: (202) 337-7808
`lpf@farkastoikka.com
`rop@farkastoikka.com
`Attorneys for Respondent
`Powerboard, LLC
`
`/s/ Ezra Sutton
`Ezra Sutton, Esq.
`EZRA SUTTON P.A.
`Plaza 9, 900 Route 9
`Woodbridge, New Jersey 07095
`Phone: (732) 634-3520
`Fax: (732) 634-3511
`Email: esutton@ezrasutton.com
`Attorneys for Respondent
`Jetson Electric Bikes, LLC
`
`
`
`
`
`4
`
`
`
`
`
`In the Matter of Certain Motorized Self-Balancing Vehicles
`
`Investigation No. 337-TA-1000
`
`CERTIFICATE OF SERVICE
`I, Russell O. Paige, hereby certify that on January 11, 2017, copies of the foregoing
`POWERBOARD LLC'S AND JETSON ELECTRIC BIKES, LLC'S CORRECTED
`MOTION FOR LEAVE TO FILE OUT OF TIME were filed with and served upon the
`following as indicated:
`
`The Honorable Lisa R. Barton
`Secretary to the Commission
`U.S. International Trade Commission
`500 E Street, SW, Room 112
`Washington, DC 20436
`The Honorable Charles E. Bullock
`Chief Administrative Law Judge
`U.S. International Trade Commission
`500 E Street, SW
`Washington, DC 20436
`Irina Kushner
`Attorney Advisor
`U.S. International Trade Commission
`500 E Street, SW
`Washington, DC 20436
`Paul A. Gennari
`Office of Unfair Import Investigations
`U.S. International Trade Commission
`500 E Street, S.W., Suite 401
`Washington, D.C. 20436
`Counsel for Complainants Razor USA LLC,
`Inventist, Inc. and Shane Chen
`
`Jonathan J. Engler
`Adduci, Mastriani & Schaumberg, L.L.P.
`1133 Connecticut Avenue, N.W.
`Washington, DC 20036
`Counsel for Respondent Hangzhou Chic
`Intelligent Technology Co., Ltd.
`
`Qingyu Yin
`Finnegan, Henderson, Farabow, Garrett &
`Dunner, LLP
`901 New York Avenue, N.W.
`Washington, DC 20001-4413
`
`Via Electronic Docket Filing
`
`Via Electronic Docket Filing
`
`Via Hand Delivery (2 Copies)
`
`NOT SERVED
`
`
`VIA ELECTRONIC MAIL
`
`Paul.Gennari@usitc.gov
`
`VIA ELECTRONIC MAIL
`
`razor@adduci.com
`razor-itc@irell.om
`
`
`VIA ELECTRONIC MAIL
`
`Chic-ITC-1000@finnegan.com
`
`
`
`
`
`
`
`Counsel for Respondents Alibaba Group
`Holding Ltd. and Alibaba.com Ltd.
`Michael R. Franzinger
`Sidley Austin LLP
`1501 K Street, NW
`Washington, DC 20005
`Curt Holbreich
`Sidley Austin LLP
`555 California Street, Suite 2000
`Los Angeles, CA 94104
`Counsel for Respondent Newegg.com Inc.
`
`Kent E. Baldauf Jr.
`The Webb Law Firm
`One Gateway Center
`420 Ft. Duquesne Boulevard, Suite 1200
`Pittsburgh, PA 15222
`Counsel for Respondnets Swagway LLC and
`Modell’s Sporting Goods, Inc.
`
`Lei Mei
`Mei & Mark LLP
`818 18th Street, NW, Suite 410
`Washington, DC 20006
`
`Counsel for Respondent Jetson Electric
`Bikes LLC
`
`Ezra Sutton
`Ezra Sutton, P.A.
`900 Route 9 North, Suite 201
`Woodbridge, NJ 07095
`Counsel for Respondent United Integral, Inc.
`dba Skque Products
`
`Jason Chuan
`The Law Office of Mary Sun
`317 E. Foothill Blvd., Suite 203
`Arcadia, CA 91006
`
`Dated: January 11, 2017
`
`VIA ELECTRONIC MAIL
`AlibabaRazorITC@sidley.com
`
`VIA ELECTRONIC MAIL
`
`Newegg_337-TA-1000@webblaw.com
`
`VIA ELECTRONIC MAIL
`
`Swagway-ITC1000@meimark.com
`
`
`VIA ELECTRONIC MAIL
`
`esutton@ezrasutton.com
`
`VIA ELECTRONIC MAIL
`
`jason@sunlegalgroup.com
`
`
`
`/s/ Russell O. Paige
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