Free Declaration - District Court of Delaware - Delaware

Case 1:08-cv-00332-GMS

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UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

LG ELECTRONICS U.S.A., INC., LG ELECTRONICS, INC., & LG ELECTRONICS MONTERREY MEXICO, S.A., DE, CV, Plaintiffs,

CIVIL ACTION Civil Action No. 2:08-cv-1869 HONORABLE JUDGE FAITH S. HOCHBERG

v. WHIRLPOOL CORP., WHIRLPOOL PATENTS CO., WHIRLPOOL MANUFACTURING CORP., and MAYTAG CORP. Defendants. DECLARATION OF RICHARD B. HARPER IN SUPPORT OF DEFENDANTS' MOTION TO DISMISS COUNTS FOUR AND FIVE OF PLAINTIFFS' COMPLAINT

Richard B. Harper declares as follows: 1. I am over the age of 18 years old and competent to testify to the matters

set forth below. I am an attorney with the law firm of Baker Botts L.L.P., counsel for Defendants Whirlpool Corp., Whirlpool Patents Co., Whirlpool Manufacturing Corp., and Maytag Corp. in this action. I have personal knowledge of the facts set forth herein. 2. This declaration is for the purpose of authenticating certain documents

attached hereto that are being filed by Defendants as exhibits to the Defendants' Memorandum of Law in Support of Defendants' Motion to Dismiss Counts Four and Five of Plaintiffs' Complaint.

NY02:621881.1

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3.

Exhibit A is a true and correct copy of Complainants' Motion for Partial

Termination Based on Withdrawal of Certain Allegations in the Complaint filed in the U.S. International Trade Commission on May 1, 2008. 4. Exhibit B is a true and correct copy of a letter from Thomas A. Schwinn,

Vice President, Maytag Corporation to Thomas L. Jarvis of Finnegan, Henderson, Farabow, Garrett & Dunner, L.L.P., counsel for LG Electronics, Inc., LG Electronics USA, Inc., and LG Electronics Monterrey Mexico, S.A., DE, CV, sent via email on April 31, 2008. I declare under penalty of perjury that the foregoing is true and correct.

________May 1, 2008_____________ Date

By:

/s/ Richard B. Harper Richard B. Harper (RH 5979)

NY02:621881.1

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UNITED STATES INTERNATIONAL TRADE COMMISSION Washington, D.C. 20436 ) ) ) ) ) )

In the Matter of CERTAIN REFRIGERATORS AND COMPONENTS THEREOF

Investigation No. 337-TA-632

COMPLAINANTS' MOTION FOR PARTIAL TERMINATION BASED ON WITHDRAWAL OF CERTAIN ALLEGATIONS IN THE COMPLAINT COMPLAINANTS WHIRLPOOL PATENTS COMPANY 500 Renaissance Drive Suite 102 St. Joseph, Michigan 49085 WHIRLPOOL MANUFACTURING CORP. 500 Renaissance Drive Suite 102 St. Joseph, Michigan 49085 WHIRLPOOL CORP. 2000 North M-63 Benton Harbor, Michigan 49022 MAYTAG CORP. 403 West 4th Street North Newton, Iowa 50208-3026 COUNSEL FOR COMPLAINANTS Scott F. Partridge Paul R. Morico BAKER BOTTS LLP One Shell Plaza 910 Louisiana Street Houston, Texas Telephone: (713) 229-1569 Facsimile: (713) 229-7769 RESPONDENTS LG ELECTRONICS, INC. LG Twin Towers 20 Yeouido-dong Yeoungdeungpo-gu, Seoul, 150-721 South Korea LG ELECTRONICS, USA, INC. 1000 Sylvan Ave. Englewood Cliffs, New Jersey 07632 LG ELECTRONICS MONTERREY MEXICO, S.A. de C.V. Av. Industrias 180 Fracc Industrial Pimsa Ote. 66603 Apodaca Nuevo Leon, Mexico

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Pursuant to Rule 210.21(a)(1) of the U.S. International Trade Commission's Rules of Practice and Procedure ("Commission Rule 210.21(a)(1)"), 19 C.F.R. §210.21(a)(1), Complainants Whirlpool Patents Company, Whirlpool Manufacturing Corporation, Whirlpool Corporation, Maytag Corporation ("Maytag") (collectively "Complainants"), move for an order partially terminating the pending investigation with respect to U.S. Patents Nos. 6,971,730 and 7,240,980. In support thereof, Complainants will show as follows: ARGUMENT On January 23, 2008, Complainants filed a Complaint against Respondents LG Electronics, Inc., LG Electronics, USA, Inc., and LG Electronics Monterrey Mexico, S.A. de C.V. asserting infringement of five U.S. Patents in violation of 9 U.S.C. §1337. Complainants hereby move to terminate the pending investigation partially by withdrawing from their Complaint all allegations relating to U.S. Patent No. 6,971,730 and U.S. Patent No. 7,240,980 (the "`730 and `980 Patents") pursuant to Commission Rule 210.21(a)(1). That Rule provides that Any party may move at any time prior to the issuance of an initial determination on violation of section 337 of the Tariff Act of 1930 for an order to terminate an investigation in whole or in part as to any or all respondents, on the basis of withdrawal of the complaint or certain allegations contained therein, or for good cause other than the grounds listed in paragraph (a)(2) of this section. The presiding administrative law judge may grant the motion in an initial determination upon such terms and conditions as he deems proper. (Commission Rule 210.21(a)(1) (emphasis added).) Under Commission Rule 210.21(a)(1), a "complainant may amend its complaint by withdrawing a patent from an investigation." Certain Integrated Circuit Chipsets and Prods. Containing Same, Inv. No. 337-TA-428, Order No. 12, 2000 WL 1073394, at *2 (June 20, 2000) (citing Certain Dynamic Random Access Memory Controllers and Certain Multi-Layer

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Integrated Circuits as well as Chipsets and Prods. Containing Same, Inv. No. 337-TA-388, Order No. 5 (Nov. 7, 1996)).) Moreover, "[a]s the language of Commission [R]ule 210.21(a)(1) indicates, the rule does not require a showing of good cause for partial termination of an investigation based on withdrawal of certain allegations contained in the complaint." Certain Integrated Circuit Chipsets and Prods. Containing Same, 2000 WL 1073394, at *2 (granting complainant's motion for partial termination wherein complainant sought to delete a patent from the pending investigation). Instead, absent "extraordinary circumstances," partial termination of an investigation will be readily granted to a complainant during the prehearing stage of an investigation. Certain Integrated Repeaters, Switches, Transceivers, and Prods. Containing Same, Inv. No. 337-TA-435, Order No. 8 (Dec. 28, 2000) (granting motion for withdrawal of allegations relating to a certain patent after finding that there were no extraordinary circumstances warranting denial of the motion); see also Certain Endodontic Instruments, Inv. No. 337-TA-610, Order No. 12, 2008 WL 372920, at *1 (February 6, 2008) (same). The investigation in this matter is in its very early stages. It was instituted just over two months ago, in late February 2008, and the Respondents only answered the Complaint less than two weeks ago. Discovery has just commenced and the hearing is not scheduled to occur until the second week of December 2008.. Therefore, neither the Respondents nor the Commission have expended significant resources with respect to the allegations concerning the '730 and '980 Patents, and no prejudice will result to Respondents as a result of partial termination. Significantly, the withdrawal of the '730 and '980 Patents will simplify the underlying investigation and conserve judicial resources by narrowing the issues to be litigated. Accordingly, Complainants respectfully move for an order partially terminating the pending investigation with respect to Respondents LG Electronics, Inc., LG Electronics, USA,

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Inc., and LG Electronics Monterrey Mexico, S.A. de C.V. as it relates to United States Patents Nos. 6,971,730 and 7,240,980. Respectfully submitted,

Dated: May 1, 2008

/Paul R. Morico/ Scott F. Partridge Paul R. Morico Amanda Woodall Elizabeth L. Durham BAKER BOTTS LLP One Shell Plaza 910 Louisiana Street Houston, Texas 77002 Telephone: (713) 229-1569 Facsimile: (713) 229-7769 Frederick G. Michaud Kristiana Brugger BAKER BOTTS LLP The Warner 1299 Pennsylvania Avenue NW Washington, DC 20004-2400 Telephone: (202) 639-7716 Facsimile: (202) 585-1039 ATTORNEYS FOR COMPLAINANTS WHIRLPOOL PATENTS COMPANY, WHIRLPOOL MANUFACTURING CORPORATION, WHIRLPOOL CORPORATION, AND MAYTAG CORPORATION

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Certification Pursuant to Ground Rule 3.2 Pursuant to Ground Rule 3.2, Complainants certify that on April 30, 2008, Complainants contacted Respondents LG Electronics, Inc., LG Electronics, USA, Inc., and LG Electronics Monterrey Mexico, S.A. de C.V. (collectively, "Respondents") and the Commission's Investigative Staff concerning Complainants' Motion for Partial Termination Based on Withdrawal of Certain Allegations in Their Complaint. The Commission Investigative Staff indicated that it is not opposed to Complainants' Motion. As of the filing of the Motion, Complainants had not heard back from Counsel for Respondents concerning Respondents' position regarding Complainants' Motion.

Dated: May 1, 2008

/Paul R. Morico/ Paul R. Morico

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CERTIFICATE OF SERVICE I, hereby certify that on this 1st day of May, 2008, copies of the foregoing Motion to Withdraw were served on the following parties, by the method(s) indicated below: U.S. International Trade Commission U.S. International Trade Commission The Honorable Marilyn R. Abbott Secretary to the Commission x 500 E Street, S.W. Washington, D.C. 20436 The Honorable Theodore Essex (2 copies) Administrative Law Judge 500 E Street, S.W., Room 317-H x Washington, D.C. 20436 x Tamara Lee [email protected] Rett Snotherly, Esquire (1 copy) Investigative Attorney Office of Unfair Import Investigations x U.S. INTERNATIONAL TRADE COMMISSION x 500 E. Street, S.W., Room 401-L Washington, DC 20436 [email protected] Counsel for Respondents: Thomas L. Jarvis (1 copy) Andrew C. Sonu x Richard L. Stroup Parmanand K. Sharma x Paul C. Goulet Finnegan, Henderson, Farabow, Garrett & Dunner L.L.P. 901 New York Avenue, N.W. Washington, DC 20001-4413
[email protected] [email protected] [email protected] [email protected] [email protected] [email protected]

Via First Class Mail Via Hand Delivery Via Electronic Filing Via Federal Express Via First Class Mail Via Hand Delivery Via Email Via Federal Express Via First Class Mail Via Hand Delivery Via Email Via Federal Express

Via First Class Mail Via Hand Delivery Via Email Via Federal Express

_______________________ Susan Bigler Paralegal

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EDIS Notice of Receipt of Electronic Documents
This message acknowledges receipt by the US. International Trade Commission of the document described by the following data. This receipt does not indicate acceptance or rejection of the document. You will receive notification of acceptance or rejection by USITC after your submission has been reviewed by the Office of the Secretary to the Commission. Please print this page for your records. Security: PUBLIC Document Information Document Number Official Receive Date System Receive Date Document Type Document Title Document Date Investigation Information Phase Area of Interest Investigation Title Violation Sec 337 Certain Refrigerators and Components Thereof, Inv. No. 337-TA632 299022 05/01/2008 10:45 05/01/2008 10:45 Motion Motion for Partial Termination Based on Withdrawal of Certain Allegations in the Complaint 05/01/2008 Investigation Number: 337-632

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Submitter Information Filed By Firm / Organization Submitted By Filed On Behalf Of Paul Morico Baker and Botts morico1 Whirlpool Patents Company, Whirlpool Manufacturing Corporation, Whirlpool Corporation and Maytag Corporation Section Title

Order

Section ID

Filename

1

Motion for Partial Termination Based on 361310 C:\Documents_and_Settings\sbigler\Desktop\Motion_to_Withdraw.pdf Withdrawal of Certain Allegations in the Complaint

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