The administrative law judge sanctioned respondent for false statements made in its opening statement and pre-trial brief regarding respondent's arguments and evidence concerning a disputed claim element, i.e., whether respondent's application registry included a list of all currently accessible software applications. "Boiled down to the essentials . . . Complainant was deceived by arguments made by Respondent and had to exert time and effort to rebut Respondent's statements concerning the Apple App Store. I also find counsel's opening statement misrepresented the evidence Respondent proffered and contradicted its own Pre-Hearing Brief. . . . In what has to be the legal equivalent of 'the dog ate my homework excuse,' Respondent blamed its misrepresentation upon a combination of miscommunication with a law firm associate and the press of litigation before the ITC. . . . Even in combination, Respondent's proffered excuses are not excuses any judge can ever accept, for if we were to do so, they would swallow accountability. . . . [L]arge amounts of time and treasure are expended by all parties in reliance on [pre-hearing] briefs, which makes accuracy essential. . . . It is also an imperative that counsel be held accountable for making accurate opening statements to the presiding judge. . . . Complainant's suggested remedy, i.e., deem infringement admitted for the 'application registry' element of claim 12, is too extreme. Thanks for Complainant's adroit questioning of [a witness] and [the witness's] honesty, the matter was clarified and harm to Complainant was limited. Hence, it is inappropriate to exact any evidentiary sanction . . . ." Instead, the court ordered complainant to prepare a time and expense reconciliation "of all effort it reasonably incurred" in connection with counsel's misrepresentation.
Wireless Communication Devices, Portable Music and Data Processing Devices, Computers and Components Thereof, 337-TA-745 (ITC April 24, 2012, Order) (Pender, ALJ)