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No. 2012-1338

UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT APPLE INC., – v. – INTERNATIONAL TRADE COMMISSION, and MOTOROLA MOBILITY, INC., _________________ Intervenor. Appellee, Appellant,

ON APPEAL FROM THE UNITED STATES INTERNATIONAL TRADE COMMISSION IN INVESTIGATION NO. 337-TA-750 _________________ APPLE INC.’S RESPONSE TO PETITION FOR PANEL REHEARING AND REHEARING EN BANC _________________ Mark G. Davis Brian E. Ferguson Weil, Gotshal & Manges LLP 1300 Eye Street, NW Washington, DC 20005 Matthew D. Powers Tensegrity Law Group LLP 201 Redwood Shores Pkwy Redwood Shores, CA 94065 E. Joshua Rosenkranz Alyssa Caridis Orrick, Herrington & Sutcliffe LLP 51 West 52nd Street New York, NY 10019 (212) 506-5000 Mark S. Davies Rachel M. McKenzie T. Vann Pearce Amisha R. Patel Orrick, Herrington & Sutcliffe LLP 1152 15th Street, N.W. Washington, DC 20005

Attorneys for Appellant Apple Inc.

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CERTIFICATE OF INTEREST Counsel for appellant certifies the following: 1. We represent Apple Inc. 2. That is the real name of the real party in interest. 3. Apple Inc. has no parent corporation. No publicly held company owns 10 percent or more of Apple Inc.’s stock. 4. The following law firms and partners or associates appeared for Apple Inc. in the ITC or are expected to appear in this court: ORRICK, HERRINGTON SUTCLIFFE LLP: E. Joshua Rosenkranz Mark S. Davies Rachel M. McKenzie T. Vann Pearce Alyssa Caridis Amisha R. Patel WEIL GOTSHAL & MANGES LLP: Carrie M. Anderson Joshua A. Bachrach Eva A. Belich Jonathan Bloom Carmen E. Bremer Melissa Colon-Bosolet Caitlyn M. Campbell Anne M. Cappella Brian C. Chang Reed Collins Justin L. Constant i

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WEIL GOTSHAL & MANGES LLP (continued): Isaac S. Crum Mark G. Davis Timothy E. DeMasi David M. DesRosier Michael Eisenberg Brian E. Ferguson Erick Flores Jacqueline T. Harlow (no longer with firm) Erin Jones (no longer with firm) Edward S. Jou Jason D. Kipnis Kevin Kudlac Jason J. Lang Kathy A. Le (no longer with firm) Joseph H. Lee (no longer with firm) Christopher T. Marando Meghan A. McCaffrey Arjun Mehra Rodney R. Miller Adrian C. Percer Penny R. Reid Danielle Rosenthal (no longer with firm) Stephen K. Shahida Caroline K. Simons Stefani Smith (no longer with firm) Christin Sullivan Rachelle H. Thompson Robert T. Vlasis Megan H. Wantland Robert Watkins (no longer with firm) Elizabeth S. Weiswasser Timothy C. Welch Jeff L. White Melissa J. Whitney Jenny C. Wu (no longer with firm) Patricia Young (no longer with firm) ii

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COVINGTON & BURLING LLP: Christopher K. Eppich Samuel F. Ernst Robert D. Fram Jessica R. Gioia Danielle L. Goldstein Iris Y. Gonzalez Leslie N. Harvey Christine Saunders Haskett Robert T. Haslam Krista S. Jacobsen (no longer with firm) R. Anthony Lopez L.J. Chris Martiniak Jeffrey T. Pearlman Nathan Shafroth Anupam Sharma Ranganath Sudarshan Winslow B. Taub TENSEGRITY LAW GROUP LLP: Steven S. Cherensky Paul T. Ehrlich Monica Mucchetti Eno Robert L. Gerrity Azra Hadzimehmedovic Matthew D. Powers BRIDGES & MAVRAKAKIS LLP Lawrence Lien Christopherh Lubeck Michael T. Pieja James A. Shimota

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Dated: September 26, 2013

Respectfully submitted, /S/ E. Joshua Rosenkranz E. Joshua Rosenkranz Orrick, Herrington & Sutcliffe LLP 51 West 52nd Street New York, NY 10019 (212) 506-5000 Attorney for Appellant

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TABLE OF CONTENTS Page INTRODUCTION .....................................................................................1 BACKGROUND........................................................................................2 ARGUMENT.............................................................................................4 I. THE PANEL DID NOT OVERLOOK OR MISAPPREHEND ANY POINT OF LAW OR FACT IN NOT ORDERING A REMAND TO ADDRESS WHETHER CLAIM 10 IS ANTICIPATED BY PERSKI ’455 ...................................................4 THE PANEL DID NOT OVERLOOK OR MISAPPREHEND ANY POINT OF LAW OR FACT IN NOT ORDERING A REMAND TO ADDRESS WHETHER THE IPHONE PRACTICES CLAIM 10 OF THE ’607 PATENT............................7 THE PANEL DID NOT OVERLOOK OR MISAPPREHEND ANY POINT OF LAW OR FACT RELATED TO THE NEXUS BETWEEN CLAIM 10 AND SECONDARY CONSIDERATIONS OF NONOBVIOUSNESS .............................9 THERE IS NO BASIS FOR EN BANC REVIEW.........................14

II.

III.

IV.

CONCLUSION .......................................................................................14

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TABLE OF AUTHORITIES Page(s) CASES Anderson v. City of Boston, 375 F.3d 71 (1st Cir. 2004)....................................................................5 Bailey v. Dart Container Corp. of Michigan, 292 F.3d 1360 (Fed. Cir. 2002) ......................................................4-5, 8 Crocs, Inc. v. United States Int’l Trade Comm’n, 598 F.3d 1294 (Fed. Cir. 2010) ...........................................................10 Crown Operations Int’l, Ltd. v. Solutia Inc., 289 F.3d 1367 (Fed. Cir. 2002) .............................................................6 Demaco Corp. v. F. Von Langsdorff Licensing, Ltd., 851 F.2d 1387 (Fed. Cir. 1988) ...........................................................10 Easley v. Reuss, 532 F.3d 592 (7th Cir. 2008) .................................................................1 KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398 (2007) .............................................................................12 Pentax Corp. v. Robison, 135 F.3d 760 (Fed. Cir. 1998) ...............................................................5 Rambus Inc. v. Rea, No. 2012-1634, 2013 WL 5312505 (Fed. Cir. Sept. 24, 2013) ............13 Sage Prods., Inc. v. Devon Indus., Inc., 126 F.3d 1420 (Fed. Cir. 1997) ...........................................................11 SmithKline Beecham Corp. v. Apotex Corp., 439 F.3d 1312 (Fed. Cir. 2006) .............................................................5 In re Suitco Surface, Inc., 603 F.3d 1255 (Fed. Cir. 2010) ...........................................................10 vi

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In re Watts, 354 F.3d 1362 (Fed. Cir. 2004) ...........................................................11 Wm. Wrigley Jr. Co. v. Cadbury Adams USA LLC, 683 F.3d 1356 (Fed. Cir. 2012) ...........................................................12 RULES Fed. R. App. P. 40 ......................................................................................1

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INTRODUCTION The Court has ordered this matter remanded to the International Trade Commission for resolution of specific questions arising from Motorola Mobility, Inc.’s ongoing infringement of two Apple Inc. patents. Motorola’s rehearing petition, however, asks the Court to order the ITC to address a host of additional issues. Motorola did not mention these additional issues in its briefing to the panel. Panel rehearing, of course, is suitable only when the Court “has overlooked or misapprehended” points of law or fact. Fed. R. App. P. 40. “It goes without saying that the panel cannot have ‘overlooked or misapprehended’ an issue that was not presented to it.” Easley v. Reuss, 532 F.3d 592, 593 (7th Cir. 2008). The rehearing petition should be denied. Motorola’s four page en banc request rests on a misreading of the Court’s opinion and raises no issues suitable for that extraordinary proceeding.

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BACKGROUND Apple filed a complaint with the ITC alleging, as relevant here, that Motorola is infringing two Apple patents. The ITC denied Apple any relief. Apple appealed. As to U.S. Patent No. 7,812,828, the Court vacated “the ITC’s decision that Motorola Mobility, Inc. does not infringe the ’828 patent claims and remand[ed] the case to allow the ITC to consider in the first instance whether the accused products infringe under the correct construction.” Op. 20.1 As to U.S. Patent No. 7,663,607, the Court found two errors. The ITC had ruled that all asserted claims were anticipated by a reference known as Perski ’455. In so holding, the ITC had found that the provisional application to which Perski ’455 claimed priority, Perski ’808, incorporated another reference, Morag ’662, that disclosed the “pixilated image” element of claim 10. The Court agreed with Apple

For the purposes of this response, the panel’s decision is abbreviated as “Op.”, Motorola’s Petition for Panel Rehearing and Rehearing En Banc is abbreviated as “Pet.”, Apple’s Opening Brief before the panel is abbreviated as “AOB,” Motorola’s Brief before the panel is abbreviated as “MB,” and Apple’s Reply Brief before the panel is abbreviated as “ARB.”
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that this was error: “Perski ’808 does not even refer to the particular functionality in Morag that detects the presence of a stylus, let alone the process that outputs touch event information to form a pixilated image, as required by claim 10.” Op. 9. “Because Perski ’808 does not incorporate by reference the anticipatory subject matter from Morag, the ITC’s finding that Perski ’455 anticipates claim 10 of the ’607 patent lacks substantial evidence.” Id. The Court “vacat[ed] the ITC’s decision that claim 10 of the ’607 patent would have been obvious and remand[ed] the case for further proceedings.” Op. 17. The Court also ruled that the ITC erred by ignoring objective indications of nonobviousness. Op. 14-18. “The ITC analyzed only the disclosure of the prior art references and based solely on that evidence determined the claims would have been obvious.” Op. 15. The Court noted that this error was not harmless because “Apple presented compelling secondary considerations evidence that may have rebutted even a strong showing under the first three Graham factors, and the ITC failed to grapple with it.” Op. 16. This included evidence of industry praise, copying and commercial success. Op. 16-17. The Court remanded so the ITC can consider “the scope and content of the prior 3

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art” “in conjunction with the evidence of secondary considerations and determine in the first instance whether claim 10 would have been obvious to one of skill in the art at the time of the invention.” Op. 1718. ARGUMENT I. THE PANEL DID NOT OVERLOOK OR MISAPPREHEND ANY POINT OF LAW OR FACT IN NOT ORDERING A REMAND TO ADDRESS WHETHER CLAIM 10 IS ANTICIPATED BY PERSKI ’455 Motorola argues that the Court “mistakenly failed to remand for additional fact finding on the issue of whether the Perski ’455 patent is prior art” to claim 10. Pet. 2. The Court could not have overlooked or misapprehended this issue because Motorola never made this meritless argument to the Court. No remand is warranted. Motorola’s appellate brief did not argue that Perski ’455 alone anticipates claim 10 of the ’607 patent. Motorola argued at length (MB 45-48) that the Court should find that Perski ’808 incorporated the relevant parts of Morag ’662. Motorola could also have argued to the Court that even if Morag ’662 was not incorporated into Perski ’808 the Perski ’455 patent anticipates claim 10. See Bailey v. Dart Container Corp. of Michigan, 292 F.3d 1360, 1362 (Fed. Cir. 2002) (“an appellee 4

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can present in this court all arguments supported by the record and advanced in the trial court in support of the judgment as an appellee, even if those particular arguments were rejected or ignored by the trial court”). For whatever reasons, Motorola did not make this available argument to the Court. After losing on the arguments it selected to brief, Motorola cannot use the panel rehearing process to revive abandoned arguments. Pentax Corp. v. Robison, 135 F.3d 760, 762 (Fed. Cir. 1998) (“a party may not raise new and additional matters for the first time in a petition for rehearing”); SmithKline Beecham Corp. v. Apotex Corp., 439 F.3d 1312, 1320 (Fed. Cir. 2006) (“When a party includes no developed argumentation on a point … we treat the argument as waived under our well established rule” (quoting Anderson v. City of Boston, 375 F.3d 71, 91 (1st Cir. 2004)). Although panel rehearing turns on what the panel decided, Motorola latches on to a statement in Apple’s reply brief. Pet. 5 (citing ARB 17). Apple’s opening brief (at 64) explained that “Apple conceived of the ’607 patent’s inventions and reduced them to practice in 2003.” On reply, Apple argued that “if the Perski patent did not have an earlier priority date based on the ’808 provisional application,” a 5

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remand would be appropriate to determine when “Apple reduced its invention to practice.” ARB 17. Apple’s brief nowhere suggests that a remand is necessary if the Court ruled (as it did) that no substantial evidence supported the ITC’s filing that Perski ’455 anticipated claim 10. Moreover, Motorola’s late-breaking argument that Perski ’455 alone can invalidate claim 10 is inconsistent with other, unchallenged, holdings of the Court. The Court ruled: “[b]ecause Perski ’808 does not incorporate by reference the anticipatory subject matter from Morag, the ITC’s finding that Perski ’455 anticipates claim 10 of the ’607 patent lacks substantial evidence.” Op. 9 (emphasis added). According to the Court, without Morag, Perski ’455 cannot anticipate claim 10. Because there are no relevant facts that additional remand proceedings could identify, a remand is not warranted. See Crown Operations Int’l, Ltd. v. Solutia Inc., 289 F.3d 1367, 1375 (Fed. Cir. 2002).

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II.

THE PANEL DID NOT OVERLOOK OR MISAPPREHEND ANY POINT OF LAW OR FACT IN NOT ORDERING A REMAND TO ADDRESS WHETHER THE IPHONE PRACTICES CLAIM 10 OF THE ’607 PATENT Motorola contends that the panel should “remand the issue of

whether secondary considerations have been established so that the ITC can determine in the first instance if the iPhone practices claim 10.” Pet. 9. By inviting this Court to revise its opinion to state that the ITC must resolve whether the iPhone practices claim 10, Motorola is again raising a meritless issue that it did not present to the panel. No rehearing is warranted. Motorola’s appellate brief is devoid of any mention of the iPhone failing to practice claim 10. Instead, Motorola told the panel that “claim 10 is slightly different” from claim 1 “but has no additional limitations relevant to the issues presented to this Court.” MB 11. Motorola did not raise claim 10 even though Apple singled out the ITC’s errors regarding claim 10. See AOB 66-67 (argument specific to claim 10). Under the rules of this Court, Motorola was free to raise on appeal the issue of whether the iPhone practices claim 10. At the ITC, Apple presented evidence that the iPhone practices each limitation of each asserted claim. See A238. The ALJ found it sufficient that Apple 7

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practiced claim 1 of the ’607 patent and did not consider the other claims, deeming such an analysis “superfluous and immaterial.” Id. The ITC adopted this portion of the ALJ’s opinion. A498-500. Motorola could have argued that the iPhone’s failure to practice claim 10 provides an alternative basis for affirming the ITC’s decision. See Bailey, 292 F.3d at 1362. It did not. This Court has no obligation to revise an opinion to address an argument that Motorola could have raised but elected to omit. In any event, the panel has already “vacat[e]d the ITC’s decision that claim 10 of the ’607 patent would have been obvious and remand[ed] for further proceedings,” instructing the ITC to consider the evidence regarding the “scope and content of the prior art … in conjunction with the evidence of secondary considerations and determine in the first instance whether claim 10 would have been obvious to one of skill in the art at the time of the invention.” Op. 1718. There is no dispute that Apple’s iPhone contains the limitations of claim 10 that the Court found compelling for purposes of secondary considerations, see Op. 16-17, e.g., “a transparent touch panel ... capable of recognizing multiple touch events that occur at different 8

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locations on the touch panel at the same time,” A561. There is thus no need for the panel to re-hear this issue. III. THE PANEL DID NOT OVERLOOK OR MISAPPREHEND ANY POINT OF LAW OR FACT RELATED TO THE NEXUS BETWEEN CLAIM 10 AND SECONDARY CONSIDERATIONS OF NONOBVIOUSNESS Motorola argues that rehearing is required because “[t]he panel found that commercial success has been conclusively established,” but “overlooked” the required analysis “to determine whether the features of the ‘multitouch screen’ that allegedly drive sales of the iPhone (and that were the subject of alleged copying and industry praise) were already present in the prior art.” Pet. 10-11. Specifically, Motorola faults the panel for not addressing any effect its finding that Perski ’455 anticipates claim 1 might have on the question of nexus. Pet. 11. Once again, Motorola faults the Court for “overlooking” an issue that Motorola never brought to its attention. Apple presented evidence of nexus between the “sophisticated multipoint touch screen” and the secondary considerations in the context of all of the asserted claims of

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the ’607 patent.2 Op. 16. At this point, Motorola could have come forward with evidence that the commercial success and other secondary considerations evidence was not due specifically to the invention set forth in claim 10. See Demaco Corp. v. F. Von Langsdorff Licensing, Ltd., 851 F.2d 1387, 1392 (Fed. Cir. 1988) (“there must of course be a sufficient relationship between the commercial success and the patented invention.”). Motorola failed to do so—instead, it questioned Apple’s evidence in a general fashion, never once mentioning claim 10 in its argument. See MB 57-60. Having made the strategic decision to take an “all or nothing” approach as to the secondary considerations evidence, Motorola cannot now, in a petition for rehearing, argue that the Court should have parsed the evidence on a claim-by-claim basis. In re Suitco Surface, Inc., 603 F.3d 1255, 1261 (Fed. Cir. 2010) (finding that appellant waived its right on appeal to present arguments on a claim-by-claim basis when it failed to do so below). See, e.g., AOB 53 (“where, as here, a product is commercially successful and practices a patent, these two facts, alone, establish a prima facie case of nexus between the patent and the commercial success,” citing Crocs, Inc. v. United States Int’l Trade Comm’n, 598 F.3d 1294, 1310-11 (Fed. Cir. 2010)).
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Relatedly, Motorola did not argue before either the panel or the ITC that Perski ’455 has any relevance to the obviousness inquiry. See A4455-71 (relying only on SmartSkin and Rekimoto ’033 as a basis for finding the ’607 patent obvious); MB 51-60 (same). Instead, Motorola again made a strategic decision, both below and on appeal, to limit its arguments concerning Perski ’455 to the issue of anticipation. See A4469-71 (limiting obviousness argument to the SmartSkin/Rekimoto combination); and at A4443-55 (Perski ’455 analysis limited to anticipation). In the context of its obviousness analysis, the Court therefore considered the scope and content of the prior art that Motorola raised. Once again, it is too late for Motorola to revive theories it abandoned at the trial level. In re Watts, 354 F.3d 1362, 1368 (Fed. Cir. 2004) (“[w]e decline to consider the appellant’s new argument regarding the scope of [the prior art] raised for the first time on appeal”); Sage Prods., Inc. v. Devon Indus., Inc., 126 F.3d 1420, 1426 (Fed. Cir. 1997) (“this court does not ‘review’ that which was not presented to the district court”). Nor did Motorola argue that there must be nexus between the iPhone and what is “‘both claimed and novel in the claim[s]’” of the ’607 11

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patent. Pet. 10 (citation omitted). Rather, Motorola asserted only that “‘[f]or commercial success to be probative evidence of nonobviousness, a nexus must be shown between the claimed invention and the evidence of commercial success.’” MB 58 (citing Wm. Wrigley Jr. Co. v. Cadbury Adams USA LLC, 683 F.3d 1356, 1363 (Fed. Cir. 2012)). In any event, the Court’s decision is not contrary to the principle Motorola now advances for the first time, that the required nexus is between the product and what is novel in the claims of the patent. The panel stated that “Apple presented compelling secondary considerations evidence,” Op. 16, and “evidence showing a nexus between the undisputed commercial success of the iPhone and the patented multitouch functionality,” Op. 17. That is a correct characterization of the evidence, even with claim 1 deemed anticipated by Perski ’455. The mere fact that claim 1 has been invalidated does not mean, as Motorola suggests, that those elements are irrelevant to the novelty of the display arrangement set forth in claim 10. It is well established that “a patent composed of several elements is not proved obvious merely by demonstrating that each of its elements was, independently, known in the prior art.” KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 418 (2007); 12

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Rambus Inc. v. Rea, No. 2012-1634, 2013 WL 5312505, at *8 (Fed. Cir. Sept. 24, 2013) (“While objective evidence of nonobviousness lacks a nexus if it exclusively relates to a feature that was ‘known in the prior art,’ the obviousness inquiry centers on whether ‘the claimed invention as a whole’ would have been obvious.” (citations omitted)). The elements of claim 10 fully support the Court’s nexus finding. Like claim 1, claim 10 requires a transparent touch panel that is capable of recognizing multiple touch events that occur at different locations on the touch panel at the same time. But claim 10 is even more closely linked to the commercial success of the iPhone and the other evidence of secondary considerations than claim 1. Claim 10 is specifically directed to “a display having a screen for displaying a graphical user interface” and also requires the formation of a pixelated image by a host device (computer/processor) based on the touches. These additional limitations not only undisputedly correspond to features in the iPhone, but include the limitations the panel agreed were not found in Perski ’455. See Op. 9. Accordingly, the evidence fully supports the finding of a nexus between claim 10 and the evidence of secondary considerations. 13

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IV.

THERE IS NO BASIS FOR EN BANC REVIEW Apart from featuring case-specific quibbles that will never recur,

Motorola’s cursory petition for en banc review is based on mischaracterizations of the Court’s opinion. The Court did not hold that any party can establish commercial success without showing the iPhone practices the relevant claim. See Pet. 11. As explained above, the issue was not presented to the Court and if necessary the ITC will resolve on remand the question of which claims the iPhone practices. Nor did the Court alter the standard for establishing nexus between sales of a product and the claimed invention. See Pet. 13. That issue also was not presented to the Court. And, as also explained above, there is no doubt that the success of the iPhone is connected to claim 10. CONCLUSION For the foregoing reasons, Motorola’s Petition for Panel Rehearing and Rehearing En Banc should be denied.

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Dated: September 26, 2013

Respectfully submitted, /S/ E. Joshua Rosenkranz E. Joshua Rosenkranz Orrick, Herrington & Sutcliffe LLP 51 West 52nd Street New York, NY 10019 (212) 506-5000 Attorney for Appellant

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CERTIFICATE OF SERVICE I hereby certify that on this 26th day of September 2013, Apple Inc.’s Response to Petition for Panel Rehearing and Rehearing En Banc was electronically filed with the Clerk of the Court using CM/ECF which will automatically serve the following counsel of record who are registered for CM/ECF: Megan Michele Valentine International Trade Commission Suite 707-K 500 E Street, S.W. Washington, DC 20436 megan.valentine@usitc.gov Andrea C. Casson International Trade Commission Office of the General Counsel Suite 707-D 500 E Street, S.W. Washington, DC 20436 andrea.casson@usitc.gov Counsel for Appellee International Trade Commission Charles K. Verhoeven Quinn Emanuel Urquhart & Sullivan, LLP 22nd Floor 50 California Street San Francisco, CA 94111 charlesverhoeven@quinnemanuel.com

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Edward J. DeFranco Quinn Emanuel Urquhart & Sullivan, LLP Firm: 212-849-7000 51 Madison Avenue 22nd Floor New York, NY 10010-1601 eddefranco@quinnemanuel.com David A. Nelson Quinn Emanuel Urquhart & Sullivan, LLP 500 West Madison Street Chicago, IL 60661 davenelson@quinnemanuel.com Alexander Rudis Quinn Emanuel Urquhart & Sullivan, LLP 51 Madison Avenue 22nd Floor New York, NY 10010-1601 alexanderrudis@quinnemanuel.com Matthew A. Traupman Quinn Emanuel Urquhart & Sullivan, LLP 51 Madison Avenue 22nd Floor New York, NY 10010-1601 matthewtraupman@quinnemanuel.com Counsel for Intervenor Motorola Mobility, Inc. /S/ E. Joshua Rosenkranz Attorney for Appellant

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