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Case 1:13-cv-01063-RWR Document 54 Filed 09/23/13 Page 1 of 2

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA MICROSOFT CORPORATION, Plaintiff, v. DEPARTMENT OF HOMELAND SECURITY, ET AL., Defendants, and MOTOROLA MOBILITY LLC, Defendant-Intervenor. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Case No. 1:13-1063-RWR

MOTION BY THE UNITED STATES INTERNATIONAL TRADE COMMISSION TO PARTICIPATE AS AMICUS CURIAE IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS The United States International Trade Commission (“the Commission”) respectfully requests leave to file the attached proposed brief as amicus curiae in support of Defendants’ arguments that the Commission has primary jurisdiction over this dispute. As explained in the proposed brief, Microsoft’s civil action asks this Court to interpret and enforce a Commission remedial order issued at the conclusion of Commission Investigation No. 337-TA-744, Certain Mobile Devices, Associated Software, and Components Thereof. The Commission is in the best position to interpret and enforce its own order. Granting the Commission’s request to participate as amicus would not unduly delay the disposition of this case, nor would it otherwise disrupt the course of these proceedings. To the contrary, it would enable the court to hear the perspective of the tribunal that issued the order for which Microsoft here seeks collateral review. The Commission has conferred with counsel for

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all parties (plaintiff Microsoft Corp., the Government defendants, and intervenor-defendant Motorola Mobility LLC) regarding this Motion. No party objects to the Commission participating as amicus in this case. For the reasons stated above and those included in the proposed brief as amicus curiae, the Commission respectfully requests that its Motion for Leave to Participate as Amicus Curiae be granted. A proposed Order is attached.

Respectfully submitted,

/s/ Panyin A. Hughes ____________________________________ PAUL R. BARDOS Acting General Counsel WAYNE W. HERRINGTON Assistant General Counsel SIDNEY A. ROSENZWEIG (D.C. Bar No. 460778) Attorney Advisor PANYIN A. HUGHES (D.C. Bar No. 499555) Attorney Advisor Office of the General Counsel U.S. International Trade Commission 500 E St., S.W. Washington, DC 20436 Tel: (202) 205-3042 Email: panyin.hughes@usitc.gov Dated: September 23, 2013 Attorneys for the United States International Trade Commission

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA MICROSOFT CORPORATION, Plaintiff, v. DEPARTMENT OF HOMELAND SECURITY, ET AL., Defendants, and MOTOROLA MOBILITY LLC, Defendant-Intervenor. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Case No. 1:13-1063-RWR

PROPOSED BRIEF AMICUS CURIAE OF THE UNITED STATES INTERNATIONAL TRADE COMMISSION IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS

PAUL R. BARDOS Acting General Counsel WAYNE W. HERRINGTON Assistant General Counsel SIDNEY A. ROSENZWEIG (D.C. Bar No. 460778) Attorney Advisor PANYIN A. HUGHES (D.C. Bar No. 499555) Office of the General Counsel U.S. International Trade Commission 500 E St., S.W. Washington, DC 20436 Tel: (202) 205-3042 Email: panyin.hughes@usitc.gov Dated: September 23, 2013 Attorneys for the United States International Trade Commission

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TABLE OF CONTENTS

TABLE OF AUTHORITIES ......................................................................................................... iii STATEMENT OF INTEREST ....................................................................................................... 1 SUMMARY OF ARGUMENT ...................................................................................................... 1 FACTUAL BACKGROUND ......................................................................................................... 2 ARGUMENT .................................................................................................................................. 4 CONCLUSION ............................................................................................................................. 10

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TABLE OF AUTHORITIES Statutes 5 U.S.C. §§ 701-706 ....................................................................................................................... 6 19 U.S.C. § 1330 ............................................................................................................................. 1 19 U.S.C. § 1333 ............................................................................................................................. 1 19 U.S.C. § 1337 .................................................................................................................... passim 28 U.S.C. § 1295 ....................................................................................................................... 6, 10 28 U.S.C. §§ 2201-2202 ................................................................................................................. 6 Cases Allnet Commc’n Serv., Inc. v. National Exch. Carrier Ass’n, 965 F.2d 1118 (D.C. Cir. 1992) ............................................................................................ 5, 10 American Ass’n of Cruise Passengers v. Cunard Line, Ltd., 31 F.3d 1184 (D.C. Cir. 1994) ........ 5 Assiniboine & Sioux Tribes of Fort Peck Indian Reservation v. Norton, 527 F. Supp. 2d 130 (D.D.C. 2007) ........................................................................................ 8, 9 Cobell v. Kempthorne, 455 F.3d 317 (D.C. Cir. 2006) ................................................................... 8 Nader v. Allegheny Airlines, Inc., 426 U.S. 290 (1976) ................................................................. 5 Total Telecomms. Servs., Inc. v. American Tel. & Tel. Co., 919 F. Supp. 472 (D.D.C. 1996) ................................................................................................. 9 Total Telecomms. Servs., Inc. v. American Tel. & Tel. Co., 99 F.3d 448 (Table), 1996 WL 590872 (Oct. 4, 1996) ............................................................... 9 United States v. Michigan Nat’l Corp., 419 U.S. 1 (1974) ........................................................... 10 VastFame Camera, Ltd. v. ITC, 386 F.3d 1108 (Fed. Cir. 2004) ................................................... 3 (continued on the next page)

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TABLE OF AUTHORITIES (CONTINUED) Rules 19 C.F.R. § 210.51 .......................................................................................................................... 3 19 C.F.R. § 210.75 ...................................................................................................................... 3, 7 19 C.F.R. § 210.76 .......................................................................................................................... 7 19 C.F.R. § 210.77 .......................................................................................................................... 3 19 C.F.R. § 210.79 ...................................................................................................................... 4, 7 Regulatory Materials Certain Coaxial Cable Connectors and Components Thereof and Products Containing Same, Inv. No. 337-TA-650, Notice of Commission Advisory Opinion, 2012 ITC LEXIS 286 (Feb. 9, 2012). ...................................................................................................................................... 4 Certain Mobile Devices, Associated Software, and Components Thereof, Inv. No. 337-TA-744, Commission Op., 2012 WL 3715788 (June 5, 2012) ................................................................. 5 Certain Mobile Devices, Associated Software, and Components Thereof, Inv. No. 337-TA-744, Initial Determination on Violation of Section 337 and Recommended Determination on Remedy and Bond, 2011 WL 6916539 (Dec. 20, 2011) ............................................................ 5 Certain Personal Data and Mobile Communications Devices and Related Software, Inv. No. 337-TA-710, Notice, 2012 ITC LEXIS 1519 (July 2, 2012) ...................................................... 8 Notice, Rules of General Application and Adjudication and Enforcement, 78 Fed. Reg. 23474 (Apr. 19, 2013) ............................................................................................................................ 3 Treatises Restatement of Judgments (Second) § 18 (1982) ........................................................................... 3

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The United States International Trade Commission (“the Commission” or “the ITC”) submits this proposed brief as amicus curiae in support of the Defendants’ motion to dismiss. STATEMENT OF INTEREST The United States International Trade Commission is an independent, nonpartisan, agency composed of six Commissioners appointed by the President. 19 U.S.C. § 1330(a). The independence of the Commission is maintained by a statutory requirement that no more than three Commissioners be members of the same political party, id., which, as a practical matter, means that the Commission is ordinarily composed – as it is now – of three Democrats and three Republicans. The Commission has independent litigating authority, id. § 1333(g), and it submits this brief on its own behalf. For more than ninety years, the Commission has been charged with investigating “unfair methods of competition and unfair acts in the importation of articles.” Tariff Act of 1922, Pub. L. No. 318, § 316, codified as reenacted and amended at 19 U.S.C. § 1337 (“section 337”). Plaintiff Microsoft Corporation’s (“Microsoft”) complaint and motion for preliminary relief seek judicial enforcement of a Commission order in an unprecedented manner, and by this brief, the Commission seeks to restore its primary jurisdiction in enforcing its own orders. SUMMARY OF ARGUMENT The Commission here takes no position on this Court’s subject matter jurisdiction or on the merits, i.e., how U.S. Customs and Border Protection (“Customs” or “CBP”) should have construed and enforced the Commission exclusion order at issue. The Commission makes merits determinations regarding the interpretation and enforcement of its remedial orders through deliberative processes set out in the Commission’s organic statute (including section 337) and Commission regulations implementing that statute. The Commission submits this brief in

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support of the Defendants’ arguments that dismissal is appropriate under the doctrine of primary jurisdiction because the Commission should be afforded the opportunity to resolve this dispute. FACTUAL BACKGROUND Microsoft’s complaint seeks judicial enforcement of a Commission exclusion order that issued on May 18, 2012, in Commission Investigation No. 337-TA-744, Certain Mobile Devices, Associated Software, and Components Thereof. That order took effect on July 18, 2012. The parties’ appeals regarding the Commission’s final determination in this matter, including the propriety and scope of the exclusion order, are currently pending, and the U.S. Court of Appeals for the Federal Circuit heard oral argument in those appeals on August 6, 2013. Motorola Mobility LLC v. International Trade Commission, No. 2012-1535 (Fed. Cir.); Microsoft Corp. v. International Trade Commission, No. 2012-1445 (Fed. Cir.). The Commission has issued exclusion orders since 1975. Trade Act of 1974, Pub. L. 93618, § 337(e), (g), 88 Stat. 1978 (1975). Pursuant to statute, the Commission is to “notify the Secretary of Treasury of [the Commission’s] action directing such exclusion from entry, and upon receipt of such notice, the Secretary shall, through the proper officers, refuse such entry.” Id. § 337(d). Currently, the “proper officers” are those of U.S. Customs and Border Protection (now part of the Department of Homeland Security). Since 1975, there have been more than 880 Commission investigations into unfair trade acts, the vast majority involving infringement of United States patents. Patents protect technology, and technology is, by nature, marked by rapid change. Consequently, issues can arise about the scope of Commission remedial orders, especially insofar as they apply to new or redesigned products. The statutory scheme accommodates such disputes in several specific ways. 2

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The option most like the relief Microsoft seeks from this Court is the institution of an enforcement proceeding at the Commission. 19 C.F.R. § 210.75(b). The Commission has the authority to conduct such ancillary proceedings through section 337’s grant of authority for the Commission to investigate violations of section 337. 19 U.S.C. § 1337(b). Such proceedings are limited in scope by the application of claim preclusion and issue preclusion against those who were parties to the first Commission investigation. VastFame Camera, Ltd. v. ITC, 386 F.3d 1108, 1115 n.2 (Fed. Cir. 2004). See generally, e.g., Restatement of Judgments (Second) § 18 (1982) (pursuant to claim preclusion, “the defendant cannot avail himself of defenses he might have interposed, or did interpose, in the first action”). The Commission endeavors to complete enforcement proceedings in less than one year. 19 C.F.R. § 210.51(a)(2) (as amended by Notice, Rules of General Application and Adjudication and Enforcement, 78 Fed. Reg. 23474, 23485 (Apr. 19, 2013)). However, completion could occur considerably more quickly if, for example, little discovery were needed to resolve the enforcement dispute. Commission rules provide for the same temporary relief that Microsoft has sought here: Whenever the Commission determines, pending a formal enforcement proceeding under § 210.75(b), that without immediate action a violation of an exclusion order . . . will occur and that subsequent action by the Commission would not adequately repair substantial harm caused by such violation, the Commission may immediately and without hearing or notice modify . . . such order. 19 C.F.R. § 210.77(a). To the extent that Customs has misconstrued the scope of the exclusion order – an issue upon which the Commission has no position because the issue has not been presented to it – such modification could include clarifications to prevent such misconstruction. 1

In addition, Microsoft may seek to have the Commission issue a cease and desist order in an enforcement proceeding. Violation of a Commission cease and desist order results in the imposition of civil penalties in an amount up to “$100,000 or twice the domestic value of articles 3

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Thus, the relief available from the Commission is substantially the same as the relief available from this Court. In addition to formal enforcement proceedings, the Commission issues advisory opinions upon request. See 19 C.F.R. § 210.79(a). Advisory opinions are directed to “whether any person’s proposed course of action or conduct would violate a Commission exclusion order.” Id. Proceedings for advisory opinions are handled flexibly by the Commission. That is to say that when possible – such as when the request does not call for further discovery – the Commission will itself decide the matter without referral to an administrative law judge. See, e.g., Certain Coaxial Cable Connectors and Components Thereof and Products Containing Same, Inv. No. 337-TA-650, Notice of Commission Advisory Opinion at 2, 2012 ITC LEXIS 286 (Feb. 9, 2012). ARGUMENT The Commission agrees with the United States defendants that to the extent the Court has jurisdiction over Microsoft’s complaint, the doctrine of primary jurisdiction applies, and the Commission requests that the Court provide the Commission with the opportunity to resolve the dispute brought here. The Commission takes no position here on whether this Court has subject matter jurisdiction over Microsoft’s complaint. In addition, the Commission takes no position here on the merits, i.e., the manner in which the Commission exclusion order ought to be construed and enforced. The Commission makes merits determinations through deliberative processes set out by statute as implemented by Commission rules. The primary jurisdiction doctrine provides an agency with the first opportunity to decide an issue. The U.S. Court of Appeals for the District of Columbia Circuit has explained: entered or sold” on each day that goods have been entered or sold in violation of the cease and desist order. 19 U.S.C. § 1337(f)(2). 4

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A district court may dismiss a suit on the ground that an agency has primary jurisdiction over it, i.e., that the agency is best suited to make the initial decision on the issues in dispute, even though the district court has subject matter jurisdiction. . . . This doctrine is rooted in the teaching that in cases raising issues of fact not within the conventional experience of judges or cases requiring the exercise of administrative discretion, agencies created by Congress for regulating the subject matter should not be passed over. American Ass’n of Cruise Passengers v. Cunard Line, Ltd., 31 F.3d 1184, 1186 (D.C. Cir. 1994) (modifications, quotations, and citations omitted). Application of the primary jurisdiction doctrine applies “particularly when the issue involves technical questions of fact uniquely within the expertise and experience of an agency.” Nader v. Allegheny Airlines, Inc., 426 U.S. 290, 304 (1976). “Expertise, of course, is not merely technical but extends to the policy judgments needed to implement an agency’s mandate.” Allnet Commc’n Serv., Inc. v. National Exch. Carrier Ass’n, 965 F.2d 1118, 1120 (D.C. Cir. 1992). This case strikes at the heart of the primary jurisdiction doctrine. The underlying dispute, on collateral challenge here, involves highly complex issues of patent infringement. The Commission’s Administrative Law Judge oversaw discovery, conducted a hearing (i.e., a bench trial), and issued a 221 page opinion with initial determinations on these issues. Initial Determination on Violation of Section 337 and Recommended Determination on Remedy and Bond, 2011 WL 6916539 (Dec. 20, 2011). After weighing the voluminous petitions and briefing from the parties, the Commission issued its own opinion on these issues. Commission Op., 2012 WL 3715788 (June 5, 2012). The voluminous administrative record is comprised of nearly one thousand trial exhibits as well as numerous pre-trial and post-trial motions, briefs, and orders. The Commission’s determinations include findings concerning the structure and operation of Motorola products as well as disposition of Motorola’s affirmative defenses.

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Microsoft’s challenge here reaches judgments that fall uniquely within the Commission’s expertise and experience. The Commission has exclusive authority to investigate unfair practices (including patent infringement) under the trade laws, and that authority is provided by the Commission’s own organic statute. Indeed, not only does Microsoft’s action frustrate the administrative processes set forth by Congress, it potentially frustrates Congress’s allocation of judicial review as well. Beyond the exclusive appellate jurisdiction of the U.S. Court of Appeals for the Federal Circuit over civil actions arising under the patent laws, 28 U.S.C. § 1295(a)(1), all Commission determinations under section 337 are reviewed by the Federal Circuit, based upon another exclusive grant of appellate jurisdiction, 19 U.S.C. § 1337(c); 28 U.S.C. § 1295(a)(6). Microsoft’s complaint purports to arise under the Administrative Procedure Act, 5 U.S.C. §§ 701-706, and the Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202, as opposed to the patent laws or section 337. Accordingly, it is not clear that the Federal Circuit would be able to assert jurisdiction over any appeal in this action, notwithstanding its exclusive jurisdiction over patent law actions and Commission proceedings under section 337. Beyond the Commission’s primary jurisdiction generally over section 337 investigations, this case presents a uniquely strong reason for deferring to the Commission under the doctrine of primary jurisdiction. The core of Microsoft’s argument is found in paragraph 8 of its complaint: “CBP is wrong. The Commission did take a ‘position’—it ruled that Motorola had waived its ‘abandonment’ claim, and that the Exclusion Order would not be narrowed to permit importation of phones that use Google servers.” Compl. ¶ 8 (emphasis in original). Even if correct, it is unclear how or why this Court is well situated to characterize what the Commission did or did

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not do. It would be a straightforward matter for the Commission to characterize its own decisions in connection with proceedings brought before it. Moreover, any decision by this Court risks creating conflict later. Notwithstanding any decision in this civil action, the parties remain free to seek relief at the Commission. In particular, if Microsoft is aggrieved by the result here, it can seek institution of Commission enforcement proceedings. 19 C.F.R. § 210.75(b). If Motorola is aggrieved, it may seek to modify the exclusion order. Id. § 210.76(a). It may also seek an advisory opinion from the Commission. Id. § 210.79(a). How such Commission determinations are to be reconciled with any judicial decision from this Court in the instant collateral proceeding will present questions of first impression for the Commission and for the courts of appeals. 2 In connection with the parties’ earlier briefing regarding preliminary relief, Microsoft presented no substantial rebuttal to the primary jurisdiction arguments above. Microsoft argued that “defendants apparently believe it was proper for Motorola to evade the ITC and instead seek that determination from CBP, and for CBP to make that determination without any guidance from the ITC.” Microsoft P.I. Reply Br. 10 (Aug. 14, 2013). Microsoft’s characterization of the underlying CBP proceedings as an evasion of Commission processes, however, weighs strongly in favor of Commission action, as opposed to further proceedings, before this Court, that are disassociated from the Commission. Microsoft has also argued that a Commission determination to adjudicate alleged violations of the exclusion order “would cause substantial delay.” Id. Yet at the same time, Microsoft has asserted that there would be no conflict because “the exclusion order at issue here would be replaced by a new one.” Microsoft P.I. Reply Br. 11 n.7. It is not clear that this is so, but even if the Commission were to issue a second exclusion order, it is not clear how that issuance would expunge a judicial interpretation of an earlier exclusion order. Microsoft has no explanation for how to reconcile contradictory determinations about the scope of a Commission order, as between the Court and the Commission. 7
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Microsoft asserted that the underlying Commission decision here is self-explanatory and so simple to enforce as to warrant relief through preliminary proceedings in this Court. Those two propositions fundamentally contradict each other. And Microsoft cannot have it both ways. If the case is as straightforward as Microsoft asserts, there is no reason to believe that Commission proceedings will be as time consuming as Microsoft intimates. That, of course, points in favor of the Commission’s primary jurisdiction. The converse also points in favor of the Commission’s primary jurisdiction. If Microsoft is wrong, and the merits question here is not simple, then the Commission’s factual expertise with this case and, more generally, with factual disputes of this nature, weighs heavily in favor of its primary jurisdiction. Microsoft has argued that there is no equivalent relief at the Commission to the preliminary relief available here because temporary relief at the Commission is “illusory.” Microsoft P.I. Reply Br. 10. The Commission recognizes that parties rarely seek such relief at the Commission. But Microsoft’s failure to seek such relief in the first instance hardly means that it is unavailable in appropriate circumstances. 3 Microsoft has also argued that primary jurisdiction ought not apply because proceedings before the Commission could take one year to conclude. It cites one case in support: Assiniboine & Sioux Tribes of Fort Peck Indian Reservation v. Norton, 527 F. Supp. 2d 130 (D.D.C. 2007). That case, however, is part of the high-profile Indian Money account dispute. See generally Cobell v. Kempthorne, 455 F.3d 317, 319 (D.C. Cir. 2006) (noting that the case had been on appeal nine times in six years). The trouble with primary jurisdiction in Assiniboine
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Microsoft cites only one Commission decision denying such relief. Microsoft P.I. Reply Br. 10. In the cited investigation, the Commission explained that – unlike Microsoft’s representation here – temporary relief was unwarranted because there was not sufficient information “to determine whether the respondents [were] currently violating the Commission’s limited exclusion order.” Certain Personal Data and Mobile Communications Devices and Related Software, Inv. No. 337-TA-710, Notice at *8, 2012 ITC LEXIS 1519 (July 2, 2012). 8

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was not a six-month delay to prepare an accounting, but the fact that such a delay was sought more than five years into the litigation and “decades” after the Interior Department had been on notice of the concerns that should have caused it to conduct such an accounting earlier. Assiniboine, 527 F. Supp. 2d at 136 (“Though some of these cases were filed in the waning days of 2006, others were filed in 2002, and the department has been on notice of these concerns for decades. In view of that history, a six-month delay at this juncture would be inappropriate.”). In contrast, the caselaw offers no suggestion that referral to agencies – whether to conduct rulemakings or adjudications – within one year or less (depending on the complexity of the issues to be adjudicated, and whether expedited relief is requested), would constitute undue delay. In Total Telecommunications Services, Inc. v. American Telephone & Telegraph Co., 919 F. Supp. 472 (D.D.C. 1996), for example, this Court denied a request for a preliminary injunction and instead dismissed the case on the basis of primary jurisdiction. Id. at 482. The Court explained that the plaintiff had contributed to the delay by proceeding in the district court rather than before the agency, and noted that administrative action was expected within 12-15 months. Id. In an unpublished affirmance, the Court of Appeals explained: “As the district court correctly found, adjudication of this dispute would require the resolution of policy questions and technical questions . . . that the Communications Act has vested in the [FCC]. . . . Because the Commission has primary jurisdiction, it was appropriate for the district court to dismiss the case . . . without addressing appellants’ application for preliminary injunction . . . .” 99 F.3d 448 (Table), 1996 WL 590872 (Oct. 4, 1996). As in Total Telecommunications, delay here is traceable to Microsoft. Its complaint asserts that its enforcement-related concerns trace back to at least early May 2013. Some four

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months later, by which time Commission proceedings could very well have concluded – if the case is as simple as Microsoft contends – it has still not sought relief from the Commission. For the foregoing reasons, should the Court find that it has subject matter jurisdiction over Microsoft’s civil action, the Court should respect the Commission’s primary jurisdiction over Microsoft’s dispute. Given the lack of any dispute about the Commission’s jurisdiction to resolve Microsoft’s dispute, the Commission believes that dismissal without prejudice is warranted. See, e.g., United States v. Michigan Nat’l Corp., 419 U.S. 1, 5 (1974) (“Dismissal rather than a stay has been approved where there is assurance that no party is prejudiced thereby.”); Allnet Commc’n Serv., Inc. v. National Exchange Carrier Ass’n, Inc., 965 F.2d 1118, 1123 (D.C. Cir. 1992) (“Although courts often apply the primary jurisdiction doctrine by holding the lawsuit in abeyance so that the parties may turn to the relevant agency, . . . we see no need to do so here” because “we can discern no present prejudice to either party from dismissal.”). Moreover, dismissal is in the interest of efficient judicial administration, because any review of a Commission enforcement proceeding should be made by the U.S. Court of Appeals for the Federal Circuit, 19 U.S.C. § 1337(c); 28 U.S.C. § 1295(a)(6), as opposed to collaterally by this Court. CONCLUSION For these reasons, the Commission respectfully requests that should the Court find that it has subject matter jurisdiction over Microsoft’s civil action that it find that the Commission has primary jurisdiction over the dispute, and dismiss the case without prejudice.

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Respectfully submitted,

/s/ Panyin A. Hughes ____________________________________ PAUL R. BARDOS Acting General Counsel WAYNE W. HERRINGTON Assistant General Counsel SIDNEY A. ROSENZWEIG (D.C. Bar No. 460778) Attorney Advisor PANYIN A. HUGHES (D.C. Bar No. 499555) Office of the General Counsel U.S. International Trade Commission 500 E St., S.W. Washington, DC 20436 Tel: (202) 205-3042 Email: panyin.hughes@usitc.gov Dated: September 23, 2013 Attorneys for the United States International Trade Commission

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA MICROSOFT CORPORATION, Plaintiff, v. DEPARTMENT OF HOMELAND SECURITY, ET AL., Defendants, and MOTOROLA MOBILITY LLC, Defendant-Intervenor. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Case No. 1:13-1063-RWR

[PROPOSED] ORDER Upon consideration of the Motion by the United States International Trade Commission to Participate as Amicus Curiae in Support of Defendants’ Motion to Dismiss, it is, this _____ day of _____________ 2013; ORDERED, that the Motion is GRANTED. SO ORDERED.

______________________________ Chief Judge Richard W. Roberts

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CERTIFICATE OF SERVICE I, Panyin A. Hughes, hereby certify on this 23rd day of September 2013 that I am electronically filing the attached APPEARANCE OF COUNSEL using the Court’s CM/ECF system, which will send notification to the following:

On behalf of MICROSOFT CORPORATION: Joseph R. Guerra, Esq. SIDLEY AUSTIN LLP 1501 K Street, NW Washington, DC 20005 jguerra@sidley.com On behalf of DEPARTMENT OF HOMELAND SECURITY, DEPARTMENT OF HOMELAND SECURITY, CUSTOMS AND BORDER PATROL, JANET A. NAPOLITANO, THOMAS WINKOWSKI and UNITED STATES OF AMERICA: Stephen C. Tosini, Esq. U.S. DEPARTMENT OF JUSTICE Civil Division, Commercial Litigation Branch P.O. Box 480 Suite 7020 Washington, DC 20044 stephen.tosini@usdoj.gov

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On behalf of MOTOROLA MOBILITY LLC: Derek L. Shaffer, Esq. QUINN EMANUEL URQUHART & SULLIVAN, LLP 1299 Pennsylvania Avenue, NW Suite 825 Washington, DC 20004 derekshaffer@quinnemanuel.com

/s/ Panyin A. Hughes PANYIN A. HUGHES (D.C. Bar No. 499555) Attorney Advisor Office of the General Counsel U.S. International Trade Commission 500 E Street S.W., Suite 707 Washington, DC 20436 Tel: 202-205-3042 Email: panyin.hughes@usitc.gov