PUBLIC VERSION UNITED STATES INTERNATIONAL TRADE COMMISSION WASHINGTON, D.C.

In the Matter of CERTAIN ELECTRONIC DEVICES, INCLUDING WIRELESS COMMUNICATION DEVICES, PORTABLE MUSIC AND DATA PROCESSING DEVICES, AND TABLET COMPUTERS Investigation No. 337-TA-794

RESPONDENT APPLE INC.S OPPOSITION TO COMPLAINANTS MOTION TO STRIKE NOTICE OF NEW FACTS RELATED TO THE COMMISSIONS QUESTIONS ON THE ISSUES UNDER REVIEW, AND ON REMEDY, BONDING, AND THE PUBLIC INTEREST (77 Fed. Reg. 70464 (Nov. 26, 2012))

PUBLIC VERSION Apple opposes Samsungs Motion to Strike (filed December 28, 2012) on the following grounds: 1. Samsung presents no proper basis for striking Apples Notice of New Facts. Samsung

refers to the alleged new facts set out in the Notice, but never denies that these are indeed facts, nor that they are new. Because these are new facts, Apple could not have raised them during the earlier briefing to the Commission, and the Commissions procedural order governing that briefing is thus inapposite. Indeed, Commission precedent permits parties to apprise the Commission of new facts relevant to issues under review and to the public interest. See, e.g., Certain Audible Alarm Systems for Divers, Inv. No. 337-TA-365, USITC Pub. 2903 (Aug. 1995), Commn Op. on Remedy, the Public Interest, and Bonding at 3 (June 6, 1995) (allowing supplementation of record with newly-discovered evidence on remedy: The Commission may make factual findings in the remedy phase of a section 337 investigation, to the extent necessary, in order to reach its remedy determination, which may be based on the evidence of record during the violation phase of the investigation, or on the basis of submissions of the parties on remedy, the public interest, and bonding); cf. Commission Rule 210.14(d) (The administrative law judge may, upon reasonable notice and on such terms as are just, permit service of a supplemental submission setting forth transactions, occurrences, or events that have taken place since the date of the submission sought to be supplemented and that are relevant to any of the issues involved.). Under that precedentwhich Samsung never addressesSamsungs Motion fails. 2. Samsungs Motion is Samsungs attempt to avoid some highly inconvenient facts. As

noted above, Samsung does not dispute the accuracy of these facts, namely that Samsung has withdrawn its requests for injunctive relief on allegedly standard-essential patents in its pending cases against Apple in courts throughout Europe; that Samsung described its withdrawal decision as being made in the interest of protecting consumer choice (Notice of New Facts, Ex. A); and that the European Commission nonetheless has charged Samsung with violating European antitrust law, and has stated that it is the Commissions preliminary view that under the specific circumstances of this case, where a commitment to license SEPs [standards-essential patents] on FRAND terms has been given by Samsung, and where a

PUBLIC VERSION potential licensee, in this case Apple, has shown itself to be willing to negotiate a FRAND licence for the SEPs, then recourse to injunctions harms competition. (Id., Ex. B.) 3. Samsung makes a conclusory suggestion that the Administrative Law Judge had a more

complete evidentiary record than the European Commission, including with respect to whether Apple is a willing licensee. But Samsung does not address any of the specific facts that the European Commission has examined, nor identify any evidence that was before the ALJ but not the European Commission. As such, Samsung provides no basis to question the European Commissions preliminary findings that Samsung has engaged in anticompetitive conduct by seeking injunctions on declared-essential patents, and that Apple has been willing to license FRAND patents on FRAND terms. 4. Samsungs attempt to use its motion to re-brief the merits also fails. Contrary to

Samsungs assertion, and as set forth more fully in Apples Contingent Petition for Review and its submissions in response to the Commissions written questions, Apple fully met its burden on each of its FRAND defenses. First, Samsungs purported FRAND licensing demand was REDACTED.

Second, REDACTED.

Third, through the testimony of Samsungs licensing executives, Apple demonstrated that Samsungs license demand of AppleREDACTEDwas not fair, reasonable, or non-discriminatory. Specifically, Apple showed that Samsung REDACTED

and impose an unfair tax on the value of other, non-standardized features and functionalities in the accused devices. Indeed, Samsungs REDACTEDconfirms that it is Samsung that has not been -2-

PUBLIC VERSION negotiating in good faith. Fourth, through the testimony of the former chairman of the ETSI Board (Dr. Michael Walker) and Samsungs own employees, including the named inventors, Apple demonstrated that Samsung failed to timely disclose its declared-essential patents in breach of ETSIs disclosure requirement, rendering the patents unenforceable under Qualcomm Inc. v Broadcom Corp., 548 F.3d 1004, 1026 (Fed. Cir. 2008). 5. Moreover, Samsung ignores Samsungs own public statement admitting that its injunction

withdrawals in Europe served the interests of consumers. This admission creates a clear and irreconcilable conflict between Samsungs statements in Europe and its statements to the ITC, as discussed in Apples Notice. Simply put, Samsungs pursuit of exclusionary relief on declared-essential patents in this investigation is equally as harmful to American consumers as Samsungs pursuit of injunctions on declared-essential patents in Europe was harmful to European consumers. Having withdrawn its injunction requests in Europe, Samsung should now withdraw its exclusion-order request here. If it does not, Apple respectfully submits that the Commission should give the new facts set out in Apples Notice due consideration as the Commission adjudicates the issues under review and the public interest.

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PUBLIC VERSION

Dated: January 2, 2013

Respectfully submitted, Apple Inc. By its counsel, __/s/ James L. Quarles III__________ William F. Lee Peter M. Dichiara Wendy H. Verlander Richard W. ONeill WILMER CUTLER PICKERING HALE AND DORR LLP 60 State Street Boston, Massachusetts 02109 Telephone: (617) 526-6000 Facsimile: (617) 526-5000 James L. Quarles III Michael D. Esch Nina S. Tallon Thomas E. Anderson T. Spence Chubb WILMER CUTLER PICKERING HALE AND DORR LLP 1875 Pennsylvania Ave., NW Washington, DC 20006 Telephone: (202) 663-6000 Facsimile: (202) 663-6363 Mark D. Selwyn WILMER CUTLER PICKERING HALE AND DORR LLP 950 Page Mill Road Palo Alto, California 94304 Telephone: (650) 858-6000 Facsimile: (650) 858-6100 James M. Dowd WILMER CUTLER PICKERING HALE AND DORR LLP 350 South Grand Avenue Los Angeles, CA 90071 Telephone: (213) 443-5300 Facsimile: (213) 443-5400

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In the Matter of CERTAIN MOBILE ELECTRONIC DEVICES, INCLUDING WIRELESS COMMUNICATION DEVICES, PORTABLE MUSIC AND DATA PROCESSING DEVICES, AND TABLET COMPUTERS Inv. No. 337-TA-794 U.S. International Trade Commission; Before the Honorable E. James Gildea CERTIFICATE OF SERVICE I, Lanta M. Chase, hereby certify that copies of the foregoing document, RESPONDENT APPLE INC.S OPPOSITION TO COMPLAINANTS MOTION TO STRIKE NOTICE OF NEW FACTS RELATED TO THE COMMISSIONS QUESTIONS ON THE ISSUES UNDER REVIEW AND ON REMEDY, BONDING, AND THE PUBLIC INTEREST, were served upon the following parties as indicated below on this 2nd day of January, 2013. The Honorable Lisa R. Barton Acting Secretary U.S. International Trade Commission 500 E Street, S.W., Room 112 Washington, D.C. 20436 The Honorable E. James Gildea Administrative Law Judge U.S. International Trade Commission 500 E Street, S.W., Room 317-E Washington, D.C. 20436 Lisa Murray Office of Unfair Import Investigations U.S. International Trade Commission 500 E Street S.W., Room 401 Washington, DC 20436 [] [X] [] Via Hand Delivery (Original + 2 Copies) Via Electronic Filing (EDIS) Via Overnight Delivery

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Via Hand Delivery Via Overnight Delivery Via Facsimile Via Electronic Mail Sarah.zimmerman@usitc.gov Via Hand Delivery (1 Copy) Via Overnight Delivery Via Facsimile Via Electronic Mail Lisa.Murray@usitc.gov

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Charles K. Verhoeven Quinn Emanuel Urquhart & Sullivan LLP 50 California Street, 22nd Floor San Francisco, CA 94111 Telephone: 415-875-6600 Kevin P.B. Johnson Victoria Maroulis Quinn Emanuel Urquhart & Sullivan LLP 555 Twin Dolphin Drive, 5th Floor Redwood Shores, California 94065 Telephone: 650-801-5066 William Price Quinn Emanuel Urquhart & Sullivan LLP 865 S. Figueroa St., 10th Floor Los Angeles, California 90017 Telephone: 213-443-3000 Charles F. Schill Jamie B. Beaber Steptoe & Johnson LLP 1330 Connecticut Avenue, NW Washington, DC 20036 Telephone: 202-429-8162

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Via Hand Delivery (1 Copy) Via Overnight Delivery Via Facsimile Via Electronic Mail SamsungITC@quinnemanuel.com S&JSamsung794@Steptoe.com

/s/ Lanta M. Chase___ Lanta M. Chase