Free Reply Brief - District Court of Delaware - Delaware

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE : : : : : v. : WHIRLPOOL CORPORATION, : Defendant. : ___________________________________________ : : WHIRLPOOL CORPORATION, : WHIRLPOOL PATENTS COMPANY, : WHIRLPOOL MANUFACTURING CORPORATION : and MAYTAG CORPORATION, : Counterclaim Plaintiffs, : : v. : LG ELECTRONICS U.S.A., INC., : LG ELECTRONICS, INC. and : LG ELECTRONICS MONTERREY MEXICO, : S.A. DE CV, : Counterclaim Defendants. : LG ELECTRONICS U.S.A., INC. and LG ELECTRONICS, INC., Plaintiffs,

Civil Action No. 08-234 (GMS) Jury Trial Demanded

PLAINTIFFS' REPLY BRIEF IN SUPPORT OF ITS MOTION TO STAY CERTAIN ISSUES PURSUANT TO 28 U.S.C. § 1659 Richard L. Stroup Andrew C. Sonu Patrick J. Coyne Walter D. Davis, Jr. FINNEGAN, HENDERSON, FARABOW, GARRETT & DUNNER, L.L.P. 901 New York Avenue, N.W. Washington, D.C. 20001-4413 (202) 408-4000 [email protected] [email protected] [email protected] [email protected] Dated: June 16, 2008 Richard K. Herrmann (I.D. #405) Mary B. Matterer (I.D. #2696) Amy A. Quinlan (I.D. #3021) MORRIS JAMES LLP 500 Delaware Avenue, Suite 1500 Wilmington, DE 19801 (302) 888-6800 [email protected] Attorneys for Plaintiffs LG ELECTRONICS U.S.A., INC., LG ELECTRONICS, INC., and LG ELECTRONICS MONTERREY MEXICO, S.A., DE, CV

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TABLE OF CONTENTS Page I. II. INTRODUCTION ........................................................................................................... 1 ARGUMENT................................................................................................................... 2 A. B. III. LG DID NOT WAIVE ITS RIGHT TO STAY BY FILING A DECLARATORY JUDGMENT ACTION IN NEW JERSEY........................... 2 IT IS PROPER TO STAY LESS THAN ALL OF THE PATENTS INVOLVED IN THE ITC INVESTIGATION.................................................... 5

CONCLUSION................................................................................................................ 6

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TABLE OF CITATIONS Page Cases Cited In re Princo Corp., 478 F.3d 1345 (Fed. Cir. 2007)................................................................ 2, 3 Statutes Cited 28 U.S.C. § 1659(a) ..................................................................................................................1-6 Other Authority Cited H.R. Rep. 103-826(I) ................................................................................................................... 4

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Plaintiffs and Counterclaim Defendants LG Electronics, USA, Inc. and LG Electronics, Inc.; and Counterclaim Defendant LG Electronics Monterrey Mexico, S.A. de C.V. (collectively "LG"), respectfully submit this reply brief in support of their motion for a mandatory, statutory stay, pursuant to 28 U.S.C. § 1659(a), of all proceedings pertaining to Whirlpool's allegations of infringement of United States Patent Nos. 6,810,680 ("the '680 patent") and 6,915,644 ("the '644 patent") in this case until the final determination of In the Matter of Certain Refrigerators and Components Thereof, Inv. No. 337-TA-632 (the "ITC Investigation"), now pending before the United States International Trade Commission ("ITC").1 The stay requested by LG in this case is mandatory and there is no basis for Whirlpool's opposition. I. INTRODUCTION Rather than address the controlling question of whether LG qualifies for the statutory stay of proceedings under 28 U.S.C. § 1659(a), Whirlpool attempts to lead this Court to error by citing to Supreme Court decisions that predate the statutory stay provision and have nothing to do with the statute or the circumstances of this case. Despite Whirlpool's insistence that these decisions somehow allow a party to ignore the statutory mandatory stay, under the guise of waiver, the cases neither hold nor suggest such a result. Rather, the explicit language of the statute controls. LG has complied with each and every requirement under 28 U.S.C. § 1659(a). The statute is clear. If a party to a civil action, who is also a respondent in a proceeding before the International Trade Commission, requests a stay of certain co-pending issues within a specified time period, that stay shall be granted. LG has done so and there is absolutely no basis for Whirlpool's opposition.

LG is concurrently filing a pro forma Reply Brief in C.A. No. 08-332-GMS in support of LG's motion to stay for the same reasons set forth in this Reply Brief. 1

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II.

ARGUMENT A. LG DID NOT WAIVE ITS RIGHT TO STAY BY FILING A DECLARATORY JUDGMENT ACTION IN NEW JERSEY

Whirlpool argues in its Opposition2 ("Whirlpool's Opposition") that, by filing a declaratory judgment action in New Jersey, LG has waived its statutory right to a stay under 28 U.S.C. § 1659(a). Whirlpool's Opposition, p. 6. Yet, LG in both that action, and in this action, has by motion exercised its statutory right to seek a stay under the statute. The mere fact that LG filed a declaratory judgment action to establish the jurisdiction of the District Court over the very claim at issue in this motion hardly constitutes a waiver. While ITC proceedings are still ongoing, 28 U.S.C. § 1659(a) requires a stay of the pending district court infringement proceedings if a party timely seeks a stay and the requirements of the statute are otherwise satisfied. In re Princo Corp., 478 F.3d 1345, 1355 (Fed. Cir. 2007). Whirlpool ignores that LG has met all of the express requirements of 28 U.S.C. § 1659(a), which provides, in pertinent part: (a) Stay.--In a civil action involving parties that are also parties to a proceeding before the United States International Trade Commission under section 337 of the Tariff Act of 1930, at the request of a party to the civil action that is also a respondent in the proceeding before the Commission, the district court shall stay, until the determination of the Commission becomes final, proceedings in the civil action with respect to any claim that involves the same issues involved in the proceeding before the Commission, but only if such request is made within-(1) 30 days after the party is named as a respondent in the proceeding before the Commission, or (2) 30 days after the district court action is filed, whichever is later. Whirlpool filed a pro forma Answering Brief in this case, C.A. No. 08-234-GMS ("the '234 case"). Whirlpool's substantive opposition was filed in co-pending related case C.A. No. 08-332-GMS ("the `332 case"), and is entitled Defendants' Answering Brief in Opposition to Plaintiffs' Motion to Stay Selected Patents Pursuant to 28 U.S.C. § 1659, D.I. 28. All references to "Whirlpool's Opposition" refer to the aforementioned substantive opposition. 2
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The present action is a civil action involving parties, LG and Whirlpool, that are also parties to a proceeding before the U.S. International Trade Commission ("ITC"), entitled In the Matter of Certain Refrigerators and Components Thereof, Inv. No. 337-TA-632 (the "ITC Investigation"). Memo in Support of Motion to Stay,3 p. 4. LG is both a party to the actions in this Court and a respondent in the ITC Investigation, and LG has made a request for a stay of proceedings in the actions in this Court with respect to certain claims that involve the same issues involved in the proceeding before the ITC. Id. at 4-5. Further, the request was made within 30 days after the district court action was filed. Id. at 5. Accordingly, all of the requirements of the statute are met, and a stay is required. See In re Princo Corp. at 1355. Whirlpool attempts to support its argument by alleging that the legislative intent of Congress in creating 28 U.S.C. § 1659(a) was to limit the statute to only defendants who are subjected to district court litigation against their will. Whirlpool's Opposition, p. 6. The statute contains no such restriction and the language of the statute as well as its legislative history establish that there is no such restriction. Whirlpool conveniently suggests that the statutory stay is only available to LG if Whirlpool sues LG in Whirlpool's chosen forum. According to Whirlpool, the statute has no application if LG instead takes steps to protect its rights by bringing a declaratory judgment action, on the same issues, in a court of its choosing. The statutory language, however, does not favor the complainant over the respondent. Rather, the statute refers to "a party to the civil action that is also a respondent in the proceeding before the Commission." 28 U.S.C. § 1659(a). LG is a respondent in the ITC proceeding and a party to a civil action, regardless of whether LG is a defendant in an infringement action initiated by Whirlpool or a plaintiff in a declaratory judgment action initiated by LG. "Memo in Support of Motion to Stay" refers to Plaintiff's Memorandum in Support of Motion to Stay Certain Issues Pursuant to 28 U.S.C. § 1659. 3
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Congress' decision not to include limiting language when referring to the district court parties evidences its intent to have the statute apply to district court plaintiffs and defendants alike. In fact, this provision was added in response to certain trade disputes between the U.S. and foreign countries. H.R. Rep. 103-826(I), at 140-142. Congress expressly extended to respondents in ITC proceedings the ability to institute parallel district court actions. Id. As part of this legislative revision, Congress also extended to the ITC respondent the right to stay any such parallel district court proceedings as to common issues. 28 U.S.C. § 1659(a). Even if Congress intended the statute to only apply to a party subjected to litigation against its will in two different forums at the same time (which is contrary to the express language of the statute), LG falls into that category. For example, in the present action, which was not filed as a declaratory judgment action, Whirlpool has filed counterclaims based on the patents in the ITC Investigation. These counterclaims subject LG to infringement claims in both the district court and the ITC, against LG's will. Therefore, even under Whirlpool's own distorted interpretation, LG nonetheless has a statutory right to stay these issues by virtue of Whirlpool's counterclaim in the Delaware action. Treating the filing of a declaratory judgment action as a waiver of LG's statutory right to a stay would frustrate the intent of Congress. Congress added Section 1659(a) "to ensure that U.S. procedures for dealing with alleged infringements by imported products comport with GATT 1994 `national treatment' rules." H.R. Rep. 103-826(I), at 142. Under the "national treatment" rule, importers and producers of imported products are not to be treated less favorably than producers of domestic products. H.R. Rep. 103-826(I), at 140. Were Whirlpool's position to be adoptedand it cannot bethe mere act of filing an ITC action against a party would effectively terminate that party's statutory right to file a declaratory judgment action, if their

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right to stay under 28 U.S.C. § 1659(a) is to be preserved. This places importers and producers of imported products in a less favorable position than producers of domestic products, whose right to file a declaratory judgment action remains intact. Thus, Whirlpool's argument

contradicts Congress' stated desire to align ITC practice with the "national treatment" rule. B. IT IS PROPER TO STAY LESS THAN ALL OF THE PATENTS INVOLVED IN THE ITC INVESTIGATION

Whirlpool's argument that LG must stay all patent infringement allegations in an action, or none, similarly flies in the face of the statutory language. Section 1659(a) expressly extends the right to stay to any claim and is not limited to the entire action. The statute provides that "at the request of a party...the district court shall stay...proceedings in the civil action with respect to any claim." 28 U.S.C. § 1659(a). The statute does not state that proceedings in an action shall be stayed with respect to all claims. A "claim" under Section 1659(a) corresponds to an

infringement claim for a single patent. There may be several infringement claims in an action, as there are in this action. Proceedings for "any claim" must be stayed "at the request of a party." Id. Whirlpool's effort to rewrite the statute to fit its desire in this case simply does not fit with the clear and express language Congress chose to define the right of a respondent in an ITC investigation. In this case LG has chosen to stay proceedings with respect to only U.S. Patent Nos. 6,810,680 ("the '680 patent") and 6,915,644 ("the '644 patent").4 Such a choice is not "contrary to the express legislative purpose," as alleged by Whirlpool. Whirlpool's Opposition, p. 8.

In the 332 case, LG also selected U.S. Patent Nos. 6,971,730 ("the '730 patent") and 7,240,980 ("the '980 patent") to be stayed. In view of Whirlpool's outstanding motion to dismiss in the 332 case (332 case, D.I. 5), Whirlpool's non-assertion letter with respect to the '730 and '980 patents (Exh. 2 to Whirlpool's Opposition), and an order from the ITC dated June 9, 2008 granting Whirlpool's motion to partially terminate (Exh. A hereto), LG is not opposed to only staying proceedings for the '680 and '644 patents. 5

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Rather, the choice is exclusively LG's. Section 1659(a) expressly allows a party to avoid concurrent district court and ITC proceedings on the same claims, but only if the party requests it. 28 U.S.C. § 1659(a). In this action, LG has not requested a stay with respect to U.S. Patent No. 6,082,130 ("the '130 patent") because it has chosen to pursue its defenses against the `130 patent simultaneously in both the ITC and this District Court. LG believes that this strategy will lead to a prompt and final resolution of the disputes between the parties and thereby conserve the resources of the ITC, this Court, and the parties. The mere fact that Whirlpool would prefer to pursue the claims it asserted in the ITC under the terms and conditions it feels are strategically advantageous to it hardly justifies placing its desires ahead of LG's express statutory rights. Whirlpool asserts that staying only two of the ITC patents is inefficient, alleging that because each of the '680, '644, and '130 patents relate to ice makers, it would be logical to litigate all three patents in this Court at the same time. Whirlpool's Opposition, pp. 8-9. Even a cursory review of the patents and the issues, however, establish that this assertion is disingenuous. The '680 and '644 patents are logically grouped together. Both of the patents are entitled "Ice Maker Fill Tube Assembly," have the same inventors and specifications, and have similar claims. Exh. B. On the other hand, the '130 patent is entitled "Ice Delivery System for a Refrigerator," does not have any inventors in common with the '680 and '644 patents, and has a specification and claims completely unrelated to the '680 and '644 patents. Exh. C. These two different groups of patents present very different and unrelated issues. Whirlpool itself treats these two groups of patents very differently in its own papers. III. CONCLUSION For the reasons set forth above, LG respectfully requests that this Court stay all proceedings pertaining to the '680 and '644 patents in this case until the ITC's determination in

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In the Matter of Certain Refrigerators and Components Thereof, Inv. No. 337-TA-632, becomes final and is no longer subject to judicial review.

Dated: June 16, 2008

/s/ Richard K. Herrmann Richard K. Herrmann (I.D. #405) Mary B. Matterer (I.D. #2696) Amy A. Quinlan (I.D. #3021) MORRIS JAMES LLP 500 Delaware Avenue, Suite 1500 Wilmington, DE 19801 (302) 888-6816 [email protected] Richard L. Stroup Andrew C. Sonu Patrick J. Coyne Walter D. Davis, Jr. FINNEGAN, HENDERSON, FARABOW, GARRETT & DUNNER, L.L.P. 901 New York Avenue, N.W. Washington, D.C. 20001-4413 (202) 408-4000 [email protected] [email protected] [email protected] [email protected] Attorneys for Plaintiffs LG ELECTRONICS U.S.A., INC., LG ELECTRONICS, INC., and LG ELECTRONICS MONTERREY MEXICO, S.A., DE, CV

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EXHIBIT A

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UNITED STATES INTERNATIONAL TRADE COMMISSION
Washington, D.C.


In the Matter of

CERTAIN REFRIGERATORS AND COMPONENTS THEREOF

Inv. No. 337-TA-632

ORDER NO. 8:

INITIAL DETERMINATION GRANTING COMPLAINANTS'
MOTION FOR PARTIAL TERMINATION BASED ON
WITHDRAWAL OF CERTAIN ALLEGATIONS IN THE
COMPLAINT

(June 9, 2008)
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On May 1, 2008, complainants Whirlpool Patent Company, Whirlpool Manufacturi~
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Corporation, Whirlpool Corporation, and Maytag Corporation (collectively "Whirlpool") fi!ti a ;::, ~ ~~ motion to partially terminate the investigation based on their withdrawal of two of the five
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originally-asserted patents. (Motion Docket No. 632-003.) Specifically, Whirlpool withdraws its infringement claims with respect to U.S. Patent Nos. 6,971,730 and 7,240,980 (the "withdrawn patents"). On May 12,2008, respondents LG Electronics, Inc., LG Electronics, USA, Inc., and LG Electronics Monterrey Mexico S.A. de C.V. (collectively "LG") filed a response supporting the motion to partially terminate, but arguing that LG should still be entitled to discovery related to the withdrawn patents to support a claim that Whirlpool failed to comply with its pre-filing obligations. I Under Commission Rule 210.21(a)(1), "[a]ny party may move at any time prior to the

'1 Whirlpool's motion for leave to file a reply in support of its motion for partial termination is hereby GRANTED. (Motion Docket No. 632-004.)

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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...The presiding administrative law judge may grant the motion in an initial determination upon such terms and conditions as he deems proper." 19 C.F.R. § 210.21 (a)(l). Based on a review of the motion and responses thereto, the Court will grant Whirlpool's motion and terminate the investigation with respect to the withdrawn patents. While LG supports the partial termination motion, it seeks a ruling from the Court allowing it to continue with discovery related to the withdrawn patents for the purpose of supporting its argument that Whirlpool failed to conduct an adequate pre-filing investigation. The Court declines to allow such discovery and instead instructs the parties to focus on the three patents that are still active in this investigation. The Court sees no value in extending the burden and expense of discovery by allowing LG to take discovery solely for the purpose of gathering evidence for a possible sanctions motion related to patents that are no longer part of this investigation. 2 Accordingly, it is the Court's Initial Determination that Motion No. 632-003 be GRANTED and the investigation be partially terminated with respect to U.S. Patent Nos. 6,971,730 and 7,240,980. This initial determination is hereby certified to the Commission.

The Court also rejects LG's argument that evidence related to Whirlpool's pre-filing investigation with respect to the withdrawn patents is relevant to demonstrate a "pattern of conduct" by Whirlpool in failing to perform adequate pre-filing investigations. LG Resp. at 8 11. LG is still able to take discovery related to Whirlpool's pre-filing investigation with respect to the three remaining patents, and can still move for sanctions if the evidence proves that Whirlpool failed to perform an adequate infringement analysis on the three remaining patents prior to initiating this investigation.
2

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Pursuant to 19 c.P.R. § 21O.42(h), this Initial Detennination shall become the detennination of the Commission unless a party files a petition for review of the Initial Detennination pursuant to 19 C.P.R. § 21O.43(a), or the Commission, pursuant to 19 c.P.R. § 210.44, orders, on its own motion, a review ofthe Initial Detennination or certain issues herein.

SO ORDERED.

Theodore R. Essex Administrative Law Judge

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IN THE MATTER OF CERTAIN REFRIGERATORS AND COMPONENTS THEREOF

Iov. No. 337-TA-632

CERTIFICATE OF SERVICE I, Marilyn R. Abbott, hereby certify that the attached ORDER was served upon, Rett Sootherly, Esq., Commission Investigative Attorney, and the following parties via fIrst class mail and air mail where necessary on June 9, 2008.

Man yn R. bbott, Secretary U.S. International Trade Commission 500 E Street, SW, Room 112A Washington, D.C. 20436

COMPLAINANTS WHIRLPOOL PATENTS COMPANY, WHIRLPOOL MANUFACTURING CORPORATION, WHIRLPOOL CORPORATION, MAYTAG CORPORATION: Scott F. Partridge, Esq.
Paul R. Morico, Esq.
Amanda Woodall, Esq.
J;:lizabeth L. Durham, Esq.
BAKER BOTTS, LLP
One Shell Plaza
910 Louisiana Street
Houston, TX 77002
Frederick G Michaud, Esq.
Kristiana Brugger, Esq.
BAKER BOTTS, LLP
The Warner
1299 Pennsylvania Avenue, NW
Washington, DC 20004-2400


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IN THE MATTER OF CERTAIN REFRIGERATORS
ANDCO~ONENTSTHEREOF

Inv. No. 337-TA-632

CERTIFICATE OF SERVICE - PAGE 2 RESPONDENTS LG ELECTRONICS, INC, LG ELECTRONICS, USA, INC and LG ELECTRONICS MONTERREY

Thomas L. Jarvis, Esq. Andrew C. Sonu, Esq. Richard L. Stroup, Esq. Parmanand K. Sharma, Esq. Paul C. Goulet, Esq. FINNEGAN, HENDERSON, FARABOW
GARRETT & DUNNER, LLP.
901 New York Avenue, NW
Washington, DC 20001-4413


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IN THE MATTER OF CERTAIN REFRIGERATORS ANDCOMWONENTSTHEREOF

lov. No. 337-TA-632

CERTIFICATE OF SERVICE - PAGE 3

PUBLIC MAILING LIST

Sherry Robinson
LEXIS - NEXIS
8891 Gander Creek Drive
Miamisburg, OR 45342
Ronnita Green
Thomson West
1100 Thirteen Street, NW, Suite 200
Washington, D.C. 20005


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EXHIBIT B

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EXHIBIT C

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