KIRKLAND 8. ELLIS LLP
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`Edward C. Donovan, P.C.
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`October18,20130_ uigtg
`To
`gr;
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`_ _ W_
`_ _ _
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`The HonorableRhondaK. Schmidtlein
`Chairman
`U.S. International Trade Commission
`500 E Street, S.W.,
`Washington’ DC 20436
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`I
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`_ _ 9_@'l;_
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`_ _
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`Office of tn»:
`Secretary
`-
`Int ' 1 Trade Commission
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`'
`
`Re:
`
`In the matter of Certain IOTDevices and Components Thereof (10T,The
`Internet of Things (IOT)_—WebApplications Displayed on a WebBrowser),
`DN 3263
`I
`
`Dear Chairman, Schmidtlein,
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`I write on behalf of International Business Machines Corporation (“IBM”) to urge the
`Commission not to institute the investigation requested by Lakshmi Arunachalam PhD’s
`Complaint under Section 337 of the Tariff Act of 1930, filed on October 3, 2017 because, among
`other reasons, the sole patent-in-suit will expire before any remedy could take effect.
`
`The Section 337 violations alleged in the Complaint are based on alleged infringement of
`only one patent, U.S. Patent No. 7,930,340, which will‘expire in less than five months. The
`‘340 patent issued from a chain of continuation applications, the earliest of which is Application
`No. 08/700,726, filed on Aug. 5, 1996. The ’340 patent’s term is calculated to be twenty years
`“from the date on which the earliest such application was filed” (35 U.S.C. § l54(a)(2)) plus the
`577 day extension under 35 U.S.C. § l.54(b), resulting in an expiration dale 0fMarch 5, 2018.
`(Related provisional applications do not affect the patent tenn. 35 U.S.C. § l54(a)(3).)
`
`Even though the ’340 patent is set to expire shortly, Dr. Arunachalam seeks a “permanent
`limited exclusion order pursuant to Section 337(d)” and a “permanent [cease and desist] order,
`pursuant to Section 337(1‘),”both predicated on the alleged infringement of “any of the claims l-
`40 ofU.S. Patent No. 7,930,340.” Compl. at 104-106. Under no reasonably conceivable
`timetable for this proposed investigation could Dr. Arunachalam obtain,the relief she requests
`before the patent expires. For the remedial orders to go into effect before March 5, 2018,
`considering post-hearing Commission review, the Presidential Review Period, and making all
`assumptions in favor of Dr. Arunachalam, a schedule would require an Initial Determination by
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`_
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`Beijing
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`Boston
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`Chicago
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`Hong Kong
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`Houston
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`London
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`Les Angeles
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`Munich
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`NewYork
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`Palo Alto
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`Shanghai
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`Washington D.C
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`

`

`KIRKLAND 8. ELLIS LLP
`
`The Honorable Rhonda K. Sehmidtlein
`October 18, 2017
`.
`Page 2
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`the end of 2017——noteven two months after the deadline for institution (November 2, 2017). No
`facts are alleged, and none exist, that could warrant such an expedited proceeding. The
`Complaint takes no measures to narrow the scope of the investigation, nami.n.gover 40
`respondents in fields ranging from technology to rental cars to banking. Dr. Arunachalam cannot
`remedy the patent expiration deficiency to achieve relief through the Commission. For this
`reason alone, IBM respectfully submits the Commission should not institute the investigation.
`See April 30, 2014, Notice of Termination of Proceedings in Certain Mobile Devices, Associated
`Sofiware, and Components Thereof (Inv. No. 337-TA-744) (terminating investigation after
`remand because patent had expired).
`‘
`A
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`The facially deficient Complaint has additional grounds for denying institution.
`Specifically with respect to IBM, the Complaint does not allege any facts regarding accused
`“articles” that IBM supposedly imports in violation of l9 U.S.C. § I337. At most, the public
`version of the Complaint vaguely alleges that “[t]he entire fabric of IBM. .. runs on Dr.
`Arunachalam’s inventions and Asserted Patent” (Compl. 1]66) an.dmerely mentions l.Bl\/[‘smain
`website www.ihm.coin (Compl. 1i 151), IBM’s “Watson” computing capability (id. 11$25, 33),
`and IBM software applications such as WebSphere (id. {Hi131, 137). Dr. Arunachalam fails to
`connect these internet and software concepts and technologies to any importation of an accused
`“article” under 19 U.S.C. § 1337(a), and therefore the complaint fails to meet the criteria set
`forth by the Con1mission’s Rules. 19 CPR 210.12(a)(9)(vii)-(viii). Moreover, because at least
`the public version of the Complaint only identifies IBM software, divorced from any accused
`and imported “article,” the allegations against IBM may be outside the scope of any Section 337
`remedy. See CIearC0rrect Operating, LLC v. Int’! Trade C0mm'n, 810 F.3d 1283, 1290 (Fed.
`Cir. 2015) (finding that “articles” under 19 U.S.C. § 1337(a) “does not extend to electronic
`transmission of digital data”). The Complaint further appears to improperly allege the same
`activities as constituting both domestic industry and infringement. Compl. at ix (describing the
`domestic industry products as “a ditto copy of Exhibit No. 4C" which contains the “Confidential
`Representative Infringement Claim Charts for the ‘340 Patent” (emphasis added)).
`
`y The Complaint contains numerous other improper allegations: purported RICO violations
`(e.g., Compl. 1]173‘(PTO is a “criminal RICO Enterprise”); 1]199 et seq. (“Facts of IBM‘s
`Racketeering”)); attacks on judges and lawyers (e.g., Compl. {Hi181, 211, 220, 227-234. 240.
`257); unspecified copyright and trade secret misappropriation allegations (Section XI); and
`alleged constitutional
`rights violations (e.g._.Compl. fll180 (“due process”), 1l1l21 8-220
`(“substantive due process”), 1]221 (“fourteenth Amendment"). The Complaint names various
`government entities as Proposed Respondents, including the United States District Court for the
`District of Delaware, the United States Court of Appeals of the Federal Circuit, the United States
`Patent & Trademark Office, and the Patent Trials & Appeals Board. Compl. 1]84. None of these
`improper allegations are relevant to any meritorious claim that could form the basis for a Section
`337 investigation.
`.
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`

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`KIRKLAND 8. ELLIS LLP
`
`i
`
`The Honorable Rhonda K. Schmidtiein
`October 18, 2017
`Page 3
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`For the foregoing reasons, IBM respectfully urges that the Commission decline to
`institute the investigation requested by Dr. Arunaehalam.
`'
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`Respectfiilly submitted,
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`/$/ Edward C. Donovan P C
`Edward C. Donovan, P.C.
`
`