UNITED STATES INTERNATIONAL TRADE COMMISSION
`WASHINGTON, DC
`
`Before The Honorable MaryJoan McNamara
`Administrative Law Judge
`
`
`In the Matter of
`
`
`CERTAIN PERCUSSIVE MASSAGE DEVICES
`
`Investigation No. 337-TA-1206
`
`
`
`JOINT PROPOSED PROCEDURAL SCHEDULE AND IDENTIFICATION OF
`LITIGATION POTENTIALLY RELEVANT TO THIS INVESTIGATION
`
`Pursuant to Order No. 4, Complainant Hyper Ice, Inc. (“Hyperice”), Respondents Opove,
`
`
`
`Ltd., Shenzhen Shufang E-Commerce Co., Ltd., Fu Si, Rechar, Inc., Ning Chen, and
`
`Performance Health Systems, LLC (collectively, “Respondents”), and the Commission
`
`Investigative Staff (“Staff”), by and through their respective counsel, hereby submit the
`
`following Joint Proposed Procedural Schedule and an identification of litigation potentially
`
`relevant to this investigation.
`
`Joint Proposed Procedural Schedule. The parties have proposed dates for all deadlines
`
`applicable to this investigation in the attached Exhibit A. The parties have met and conferred and
`
`are in agreement as to all dates in their Joint Proposed Procedural Schedule. The parties would
`
`welcome the opportunity to address their proposal telephonically with the ALJ, and respectfully
`
`request that the ALJ enter their Joint Proposed Procedural Schedule, and grant leave for (i) the
`
`private parties to move the filing of Complainant and Respondents’ Pre-Hearing Statements and
`
`Briefs from January 8, 2021, to January 12, 2021, and (ii) the Staff to add staggered deadlines for
`
`the filing of its Initial Claim Construction Brief, Pre-Hearing Statement and Brief, Initial Post-
`
`Hearing Brief, and Reply Post-Hearing Brief..
`
`
`
`
`
`WASHINGTON, DC
`
`Before The Honorable MaryJoan McNamara
`Administrative Law Judge
`
`
`In the Matter of
`
`
`CERTAIN PERCUSSIVE MASSAGE DEVICES
`
`Investigation No. 337-TA-1206
`
`
`
`JOINT PROPOSED PROCEDURAL SCHEDULE AND IDENTIFICATION OF
`LITIGATION POTENTIALLY RELEVANT TO THIS INVESTIGATION
`
`Pursuant to Order No. 4, Complainant Hyper Ice, Inc. (“Hyperice”), Respondents Opove,
`
`
`
`Ltd., Shenzhen Shufang E-Commerce Co., Ltd., Fu Si, Rechar, Inc., Ning Chen, and
`
`Performance Health Systems, LLC (collectively, “Respondents”), and the Commission
`
`Investigative Staff (“Staff”), by and through their respective counsel, hereby submit the
`
`following Joint Proposed Procedural Schedule and an identification of litigation potentially
`
`relevant to this investigation.
`
`Joint Proposed Procedural Schedule. The parties have proposed dates for all deadlines
`
`applicable to this investigation in the attached Exhibit A. The parties have met and conferred and
`
`are in agreement as to all dates in their Joint Proposed Procedural Schedule. The parties would
`
`welcome the opportunity to address their proposal telephonically with the ALJ, and respectfully
`
`request that the ALJ enter their Joint Proposed Procedural Schedule, and grant leave for (i) the
`
`private parties to move the filing of Complainant and Respondents’ Pre-Hearing Statements and
`
`Briefs from January 8, 2021, to January 12, 2021, and (ii) the Staff to add staggered deadlines for
`
`the filing of its Initial Claim Construction Brief, Pre-Hearing Statement and Brief, Initial Post-
`
`Hearing Brief, and Reply Post-Hearing Brief..
`
`
`
`
`
`
`A.
`
`Good Cause for Moving Deadline for Private Parties to File Pre-Hearing
`Statements and Briefs
`
`To allow for the Christmas and New Year’s Day holidays and to allow sufficient time for
`
`the parties to complete expert discovery, including depositions, the parties respectfully request
`
`that the ALJ reset the deadline for the Pre-Hearing Statements and Briefs from January 8 until
`
`January 12. OUII does not oppose this deadline and this will not materially affect any other
`
`deadline in the Joint Proposed Procedural Schedule.
`
`B.
`
`Good Cause for Adding Staggered Briefing Deadlines for Staff
`
`The Staff respectfully requests adding the proposed staggered briefing deadlines for the
`
`filing of its Initial Claim Construction Brief (on October 30, 2020), Pre-Hearing Statement and
`
`Brief (on January 20, 2021), Initial Post-Hearing Brief (on April 16, 2021), and Reply Post-
`
`Hearing Brief (on April 23, 2021) in the Joint Proposed Procedural Schedule. The Staff submits
`
`that there is good cause for the addition of these proposed deadlines. Specifically, the staggered
`
`briefing will provide the Staff with a better opportunity to consider and to address the issues in
`
`dispute and the evidence of record. Also, the private parties do not oppose the staggered
`
`deadlines, which do not affect materially any other deadline in the Joint Proposed Procedural
`
`Schedule.
`
`Identification of Litigation Potentially Relevant to this Investigation. The parties identify
`
`the following pending cases as potentially relevant to this Investigation:
`
`• Hyperice was involved in litigation in the United States District Court for the
`
`Central District of California with respect to the ‘822 Patent from January 17,
`
`2020 to March 10, 2020. See Hyper Ice, Inc. v. Yourniceday.com, et al., 8:2020-
`
`cv-00115 (C.D. Cal.). Hyperice voluntarily dismissed the litigation after it was
`
`
`
`2
`
`
`
`unable to serve any of the Defendants, and yourniceday.com has subsequently
`
`ceased operating.
`
`• Hyperice was involved in litigation in the United States District Court for the
`
`Central District of California, with respect to the ‘822 Patent from September 16,
`
`2019 to November 5, 2019. See Addaday LLC v. Hyperice, Inc., No. 8:2019-cv-
`
`01760 (C.D. Cal.). The parties have settled that dispute.
`
`• Respondent Addaday LLC recently filed a declaratory judgment action against
`
`Complainant on August 6, 2020 asserting, among other things, non-infringement
`
`and invalidity of the patents asserted in this investigation, breach of a settlement
`
`agreement, intentional interference with contractual relations, intentional
`
`interference with prospective economic relations, and unfair competition. See
`
`Addaday LLC v. Hyper Ice, Inc., No. 8:2020-cv-1459 (C.D. Cal.).
`
`
`
`
`
`
`Dated: August 7, 2020
`
`
`
`
`
`
`
`Respectfully submitted,
`
`/s/ Brian G. Arnold
`Brian G. Arnold
`Jonathan Pink
`LEWIS BRISBOIS BISGAARD & SMITH LLP
`633 West 5th Street, Suite 4000
`Los Angeles, CA 90071
`Telephone: (213) 250-1800
`Facsimile: (213) 250-7900
`
`Paul M. Bartkowski
`ADDUCI, MASTRIANI & SCHAUMBERG, LLP
`1133 Connecticut Avenue, NW, 12th Floor
`Washington, DC 20036
`Telephone: (202) 467-6300
`Facsimile: (202) 466-2006
`
`
`
`3
`
`
`
`
`
`
`
`Counsel for Hyper Ice, Inc.
`
`/s/ Nicholas H. Jackson
`Mark L. Hogge
`Nicholas H. Jackson
`Orrin J. Neitzke
`1900 K Street, N.W.
`Washington, D.C. 20006
`Telephone: (202) 496-7500
`Facsimile: (202) 496-7756
`
`Qianwu Yang
`DENTONS CHINA
`3F&4F, Block A, Shenzhen International
`Innovation Center
`No. 1006, Shennan Boulevard,
`Futian District
`Shenzhen 518026
`China
`Telephone: + 86 0755 2622 4880
`
`Counsel for Respondents Opove, Ltd., Shenzhen
`Shufang E-Commerce Co., Ltd., Fu Si, Rechar, Inc.,
`Ning Chen, and Performance Health Systems, LLC
`
`
`/s/ Vu Q. Bui
`
`Margaret D. Macdonald, Director
`Anne Goalwin, Supervisory Attorney
`Vu Q. Bui, Investigative Attorney
`
`Office of Unfair Import Investigations
`U.S. International Trade Commission
`500 E Street SW Suite 404
`Washington, DC 20436
`202-205-2582
`202-205-2158 (facsimile)
`
`
`
`
`
`
`
`
`
`
`4
`
`
`
`
`
`
`
`
`
`EXHIBIT A
`
`
`
`
`
`
`
`
`
`Inv. No. 337-TA-1206
`
`PROPOSED PROCEDURAL SCHEDULE
`
`Event
`
`Parties File a Proposed Procedural Schedule and Identify
`USPTO, PTO Proceedings as Well as State and Federal
`Litigation That Is Relevant to This Investigation
`
`Deadline for Complainant’s Objections and Responses to
`Respondents’ First Set of Interrogatories and Request for
`Production
`
`Deadline for Respondent’s Objections and Responses to
`Complainant’s First Set of Interrogatories and Request for
`Production
`
`Deadline for Propounding First Set of Interrogatories
`
`Deadline for Propounding First Request for Production of
`Documents
`
`Deadline for Propounding Initial Contention Interrogatories
`
`Complainant Files Notice of Patent Priority Dates, Dates of
`Conception and Curriculum Vitae
`
`Parties Exchange List of Patent Claim Terms for Construction
`
`Deadline for Disclosure of Domestic Industry Products
`(Per Ground Rule 1.13)
`
`Deadline for Initial Contention Interrogatory Responses on
`Which a Party Has the Burden of Proof (Except for
`Infringement and Invalidity)
`
`Date(s)
`
`August 7, 2020
`
`
`
`14 days after service
`
`
`
`14 days after service
`
`
`August 14, 2020
`
`
`August 14, 2020
`August 14, 2020
`
`
`September 3, 2020
`
`September 3, 2020
`
`
`September 4, 2020
`
`
`
`September 4, 2020
`
`4822-1683-2710.1
`
`
`
`
`
`
`
`
`
`
`
`Event
`
`Deadline for Disclosure of Infringement Contentions
`
`Deadline for Disclosure of Domestic Industry Contentions
`
`Respondents and Staff File Notice of Prior Art
`
`Discovery Management Teleconference
`
`Deadline for Disclosure of Invalidity Contentions
`
`Complainant and Respondents Provide Each Other with Their
`Proposed Construction of Disputed Claim Terms
`
`File Identification of Expert Witnesses, Including Their
`Expertise and Curriculum Vitae
`
`Staff Provides Proposed Construction of Disputed Claim Terms
`
`File Tentative List of Witnesses a Party Will Call to Testify at
`the Evidentiary Hearing, with an Identification of Each
`Witness’s Relationship to the Party
`
`Parties Meet and Confer to Attempt to Limit Claim Terms and
`Claim Term Disputes
`
`Deadline for First Settlement Conference
`
`Deadline for Substantial Completion of Document (Paper and
`Electronic) Discovery by Complainant and Respondents
`
`Parties to Exchange Proposed Markman Exhibit Lists and
`Exhibits (Except for Expert Declarations and Demonstratives)
`(Per Ground Rule 1.14.3.1)
`
`File Joint Claim Construction Chart
`
`Submit First Settlement Conference Joint Report
`
`Deadline for Responses to Contention Interrogatories on
`Which a Party Does Not Bear the Burden of Proof
`
`Date(s)
`September 8, 2020
`
`September 8, 2020
`
`September 15, 2020
`
`September 15, 2020 at
`2:00 p.m.
`September 21, 2020
`
`October 6, 2020
`
`
`October 13, 2020
`
`October 13, 2020
`
`
`
`October 13, 2020
`
`
`October 16, 2020
`
`October 16, 2020
`
`
`October 16, 2020
`
`
`
`October 16, 2020
`
`October 19, 2020
`October 23, 2020
`
`
`October 23, 2020
`
`4822-1683-2710.1
`
`
`
`
`
`
`
`
`
`Parties File a Joint List Showing Each Party’s Proposed
`Construction of Disputed Claim Terms, with Initial Claim
`Construction Briefs by Private Parties Explaining Their
`Initial Claim Constructions and Expert Declarations (If
`Applicable)
`
`
`
`October 26, 2020
`
`4822-1683-2710.1
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Event
`
`Staff Files Initial Claim Construction Brief
`
`Deadline to File Markman Hearing Proposals (Including Final
`Proposed Markman Exhibit Lists)
`
`Last Day to File Motions to Compel Discovery
`(At Least Three (3) Weeks Before the Close of Discovery
`Without Leave and Explanation Why A Motion Was Not Filed
`Earlier)
`
`Discovery Management Teleconference
`
`Fact Discovery Cutoff and Completion
`
`Technology Stipulation Deadline
`
`Exchange of Initial Expert Reports (Identify
`Tests, Surveys, Data) (Send copies to
`McNamara337@usitc.gov)
`
`Markman Hearing (If Ordered)
`(Parties Should Provide Thumb Drive of Tutorials if Included
`in Markman Hearing and the Pandemic Evacuation is Over;
`Otherwise as Described in Order)
`
`File Joint Chart Setting Forth Parties’ Post-Hearing Claim
`Constructions (Per Ground Rule 1.14)
`
`Exchange of Rebuttal Expert Reports (Send copies to
`McNamara337@usitc.gov)
`
`Private Parties Exchange Hearing Exhibit Lists
`(Most likely, Tentative)
`
`Expert Discovery Cutoff and Completion
`
`4822-1683-2710.1
`
`
`
`Date(s)
`
`October 30, 2020
`
`November 4, 2020
`
`
`November 6, 2020
`
`
`November 19, 2020 at
`2:00 p.m.
`November 20, 2020
`
`December 2, 2020
`
`
`December 4, 2020
`
`
`
`Week of December 7,
`2020
`
`
`December 16, 2020
`
`
`December 23, 2021
`
`
`January 8, 2021
`
`
`January 8, 2021
`
`
`
`
`
`
`
`Staff Exchanges Hearing Exhibit List
`
`
`January 11, 2021
`
`4822-1683-2710.1
`
`
`
`
`
`
`
`
`
`Event
`
`Complainant and Respondents File Pre-Hearing Statements
`and Briefs
`
`File Motions for Receipt of Evidence Without a Witness
`
`Submission of Declarations Justifying Confidentiality of
`Exhibits
`
`Last Day to File Summary Determination Motions2
`
`Staff Files Pre-Hearing Statement and Brief
`
`Parties file Joint Outline of Issues, Contentions from Pre-
`Hearing Briefs (Per Ground Rule 7.3)
`
`Attendance at One-day Mediation Session1
`
`
`
`Submission of Mediation Report
`
`Last day to file Motions in Limine
`
`Last day to file High Priority Objections
`
`File Responses to Motions in Limine
`
`File Responses to High Priority Objections
`
`File on EDIS any Stipulations Regarding Exchange of
`Demonstratives for Evidentiary Hearing and Any Other
`Stipulations Into Which the Parties Enter
`
`Date(s)
`
`January 12, 2021
`
`January 15, 2021
`
`
`January 15, 2021
`
`January 19, 2021
`
` January 20, 2021
`
`
`January 21, 2021
`
` January 29, 2021
`
`(Within 7 days of
`Mediation)
`
`February 17, 2020
`
`February 17, 2021
`
`February 24, 2021
`
`February 24, 2021
`
`March 17, 2021
`
`
`
`
`
`
`1 For questions that pertain to the mediation program, the parties should refer to the
`Revised Users’ Manual for Commission Mediation Program, available at http://
`www.usitc.gov.
`
`2 Given that Commission Rule 210.18 requires at least 60 days between summary
`determination motions and the evidentiary hearing, the summary determination deadline
`may be moved to a later date if the proposed hearing dates do not change.
`
`4822-1683-2710.1
`
`
`
`
`
`
`
`
`
`
`Event
`
`Pre-Hearing Conference
`
`Evidentiary Hearing (Starting with Tutorials, as Parties
`Propose)
`
`Last Day to Submit Final Exhibits, by Appointment. All
`Exhibits Should be Properly Labeled. (Follow the Ground
`Rules)
`
`Complainant and Respondents File Initial Post-Hearing Briefs
`(Only On Issues For Which The Party Bears The Burden Of
`Proof) and Final Exhibit Lists
`
`Submit Final JOINT Direct and Rebuttal Exhibits (via Flash
`Drive)
`
`Staff Files Initial Post-Hearing Brief
`
`Complainant and Respondents File Reply Post-Hearing Briefs
`(Only On Issues Discussed In The Initial Post-Hearing Brief of
`an Opposing Party)
`
`Staff Files Reply Post-Hearing Brief
`
`Parties File Outline of Issues, Tracing Arguments, Contentions
`from Pre-Hearing Through Post-Hearing Reply Briefs (Include
`Contentions, Arguments That Have Been Dropped, Per
`Ground Rule 7.3)
`
`Final ID due
`
`Target Date
`
`
`
`4822-1683-2710.1
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Date(s)
`
`March 17, 2021
`9:30 a.m., March 17-
`19, 22-23, 2021
`
`Add tentatively
`March 2, 29-30
`
`No more than four (4)
`business days after
`hearing
`
`April 12, 2021
`
`April 12, 2021
`
`
`April 16, 2021
`
`April 19, 2021
`
`
`April 23, 2021
`
`April 23, 2021
`
`August 20, 2021
`
`December 22, 2021
`
`
`
`
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that on August 7, 2020, copies of the foregoing were filed with and served
`upon the following as indicated:
`
`
`The Honorable Lisa Barton
`Secretary to the Commission
`U.S. INTERNATIONAL TRADE COMMISSION
`500 E Street, SW, Room 112
`Washington, DC 20436
`
`The Honorable MaryJoan McNamara
`U.S. INTERNATIONAL TRADE COMMISSION
`500 E Street, SW
`Washington, DC 20436
`
` VIA ELECTRONIC FILING
`
`
`
` VIA ELECTRONIC MAIL
`McNamara337@usitc.gov
`Jae.Lee@usitc.gov
`
`
` VIA ELECTRONIC MAIL
`Vu.Bui@usitc.gov
`
`Vu Bui, Esq.
`Office of Unfair Import Investigations
`U.S. International Trade Commission
`500 E Street, S.W.
`Washington, DC 20436
`
`RESPONDENTS RECHAR, INC., NING CHEN, OPOVE, SHENZHEN SHUFANG E-COMMERCE CO.,
`LTD., FU SI, AND PERFORMANCE HEALTH SYSTEMS, LLC
`
`
` VIA ELECTRONIC MAIL
`Mark L. Hogge
`Nicholas H. Jackson
` OP-Toloco-Dentons-1206@dentons.com.
`Orrin J. Neitzke
`DENTONS US LLP
`1900 K Street NW
`Washington, DC 20006
`
`Qianwu Yang
`DENTONS CHINA
`3F&4F, Block A, Shenzhen International
`Innovation Center
`No. 1006, Shennan Boulevard,
`Futian District
`Shenzhen 518026
`China
`
`RESPONDENTS ADDADAY LLC:
`Addaday LLC
`2500 Broadway
`Building F, 125
`Santa Monica, CA 90404
`
`
`
` VIA FEDERAL EXPRESS
`
`
`
`
`
` VIA FEDERAL EXPRESS
`
`
`
` VIA FEDERAL EXPRESS
`
`
`RESPONDENTS WODFITTERS
`WODFitters
`6281 Corder Ln.
`Lorton, VA 22079
`
`
`RESPONDENTS MASSIMO MOTOR SPORTS, LLC
`Massimo Motor Sports, LLC
`3101 W Miller Rd.
`Garland, TX 75041
`
`RESPONDENTS KINGHOOD INTERNATIONAL LOGISTICS INC.
`
`Kinghood International Logistics Inc.
` VIA FEDERAL EXPRESS
`16851 Knott Ave.
`
`La Mirada, CA 90638
`
`RESPONDENTS MANYBO ECOMMERCE LTD.
`Manybo Ecommerce Ltd.
`Unit 622, Kwai Shun Ind. Centre, 51-63
`Container Port Road, Kwai Chung, N.T.,
`Hong Kong
`
`RESPONDENTS SHENZHEN LET US WIN-WIN TECHNOLOGY CO., LTD.
`
`Shenzhen Let Us Win-Win Technology Co.,
` VIA FEDERAL EXPRESS
`Ltd.
`
`4F, No.229, Busha Road, Buji, Shenzhen,
`Guangdong Province, China 518000
`
`RESPONDENTS SHENZHEN INFEIN TECHNOLOGY CO., LTD.
`
`Shenzhen Infein Technology Co., Ltd.
` VIA FEDERAL EXPRESS
`12-1, 1st Factory Building, Tian'an Digital
`
`Innovation Park, No. 441, Huangge Road,
`Longcheng Street, Longgang District,
`Shenzhen, Guangdong, China, 51800
`
`RESPONDENTS HONG KONG YONGXU CAPITAL MANAGEMENT CO., LTD.
`
`Hong Kong Yongxu Capital Management
` VIA FEDERAL EXPRESS
`Co., Ltd.
`
`Flat/Rm 1804, Beverly House, 93-107
`Lockhart
`Road, Wanchai, Hong Kong, China 999077
`
`
`
`
`
`
`
` VIA FEDERAL EXPRESS
`
`
`
`
`2
`
`
`
`RESPONDENTS LAIWUSHIYU XINUAN TRADING COMPANY
`
`Laiwushiyu Xinuan Trading Company
` VIA FEDERAL EXPRESS
`Chendaxia Village, Laiwu, Shandong
`
`District,
`China 271100
`
`RESPONDENTS SHENZHEN QINGYUETANG E-COMMERCE CO., LTD.
`
`Shenzhen QingYueTang E-commerce Co.,
` VIA FEDERAL EXPRESS
`Ltd.
`
`Rm.1001, 10th Fl., Zhongken Building
`No.2002 Bixin Rd., Longgang District,
`Shenzhen, Guangdong, China 518000
`
`RESPONDENTS SHENZHEN SHILUO TRADING CO., LTD.
`
`Shenzhen Shiluo Trading Co., Ltd.
` VIA FEDERAL EXPRESS
`37 East 305, Minli Old Village, Minzhi
`
`Street,
`Longhua New District, Shenzhen,
`Guangdong,
`China 518000
`RESPONDENTS KULA ECOMMERCE CO., LTD.
`Kula eCommerce Co., Ltd.
`NO. 50, Danshui Baiyun Yi Road, Huiyang
`District, Huizhou City, Guangdong, China
`516211
`
`RESPONDENTS SHENZHEN QIFENG TECHNOLOGY CO., LTD.
`
`Shenzhen Qifeng Technology Co., Ltd.
` VIA FEDERAL EXPRESS
`1019, Weidonglong Technology Building,
`
`Meilong Boulevard, Longhua Sub-District,
`Longhua Ne W District
`Shenzhen, Guangdong, 518015 China
`
`
`
`
` VIA FEDERAL EXPRESS
`
`
`
`
`/s/ Jeremy Miller, Paralegal
`ADDUCI, MASTRIANI & SCHAUMBERG, L.L.P.
`DIRECT: 202.407.8620
`MAIN: 202.467.6300
`EMAIL: HYPERICE-001@ADDUCI.COM
`
`
`
`
`
`3
`
`
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