[00:00:00] Speaker 04: All right. [00:00:01] Speaker 04: Just to provide some guidance for counsel about the oral argument, we are not interested in hearing oral argument about the issues of infringement or invalidity that in part form the basis for the stay motion. [00:00:14] Speaker 04: Our focus is only on the stay motion as to commercial operators and gate operators. [00:00:24] Speaker 04: It's going to be a little bit difficult here because unlike normal arguments, we don't have a joint appendix. [00:00:30] Speaker 04: And we've had, at least I've had difficulty in accessing some of the ITC record because it's sealed. [00:00:38] Speaker 04: So we'll work through that as best we can. [00:00:44] Speaker 04: OK. [00:00:45] Speaker 04: So let's start with Ms. [00:00:47] Speaker 04: Degna. [00:00:51] Speaker 00: Thank you, Your Honor. [00:00:59] Speaker 00: Forgive me. [00:01:02] Speaker 00: Okay, well with this guidance, we will start by saying the court, I just elect authority to issue the orders. [00:01:09] Speaker 00: And they should be stayed until the court rules on our underlying appeal in the case in full. [00:01:15] Speaker 00: If I could, I would say. [00:01:16] Speaker 04: It lacks authority to issue the orders? [00:01:18] Speaker 04: What do you mean? [00:01:19] Speaker 00: It lacked authority to enter the modified remedial orders, because they were not clarifications of the other orders, but rather they were modified orders under subsection K. Well, agencies normally have the ability to reconsider their decisions. [00:01:34] Speaker 04: And from the record here, one can infer that there was a simple mistake in the way the orders were written and that that was corrected. [00:01:45] Speaker 04: Now whether that was a modification or clarification is an issue. [00:01:51] Speaker 04: But surely the ITC has the authority to correct a mistake in the fact that the statute [00:01:58] Speaker 04: speaks only in terms of modifications for changed circumstances wouldn't limit them from correcting a mistake, would it? [00:02:05] Speaker 00: So, Your Honor, we would disagree with the notion that what happened here was simply correcting a mistake. [00:02:13] Speaker 05: But just theoretically. [00:02:15] Speaker 00: Theoretically, does it have the opportunity? [00:02:16] Speaker 00: Now, I would say it does not have the authority to correct a mistake if that mistake, the correction thereof, would actually expand the scope of the orders [00:02:26] Speaker 00: which in this case mirrored the scope of the investigation and the nose of the investigation. [00:02:31] Speaker 05: OK. [00:02:31] Speaker 05: But what if there's something in the record that one could discern that makes it painfully obvious that the description of the accused products in the remedial order was mistakenly designated? [00:02:50] Speaker 05: uh... with the commission under those circumstances where it really is painfully obvious given the course of the investigation [00:03:00] Speaker 05: the way the parties litigated the case, that there was just a mistake in what was identified and described as the products to be excluded. [00:03:10] Speaker 05: Would that be within the ITC's inherent authority to say, oh, I see that there was a mistake. [00:03:17] Speaker 05: We need to do some kind of errata. [00:03:19] Speaker 05: Yes, maybe that errata would actually end up expanding the scope of UQ's products. [00:03:25] Speaker 05: But nonetheless, it's a clear and plain error. [00:03:29] Speaker 05: Would that be okay? [00:03:31] Speaker 00: So, to answer your question without getting into why I disagree that there's a mistake here, I think what we see in the regulations, the agencies still have to follow those regulations, [00:03:42] Speaker 00: And to correct a mistake in the notice of investigation, there has to be a publication of it. [00:03:49] Speaker 00: And so here, remember, the orders specifically mirror the language in the notice of investigation. [00:03:54] Speaker 00: And I don't think the ITC, even to correct a mistake, could sua sponte after an investigation had been terminated. [00:04:05] Speaker 00: change the orders and also change the notice of investigation without giving the public notice, given the regulations it has before. [00:04:10] Speaker 04: Why not if it were an evident mistake in the language of the notice of investigation as well as in the exclusion order? [00:04:18] Speaker 04: Why can't mistakes be corrected by an agency? [00:04:22] Speaker 00: So I think in this case, the agency has a regulation that says how you would [00:04:27] Speaker 00: made corrections or amendments to the notice of investigation, that was not followed. [00:04:30] Speaker 00: So I agree. [00:04:31] Speaker 05: But that regulation and statute is for a particular circumstance for why you might make a modification or alteration to an order. [00:04:40] Speaker 05: And I don't know if that's so confining that it's the only way and that, therefore, the commission, unlike any other tribunal, [00:04:52] Speaker 05: is without the inherent authority to make a correction to a mistake in any of its orders. [00:04:58] Speaker 00: So I think that the regulation we're discussing talks in terms of time post-institution. [00:05:03] Speaker 00: And so here, it would apply, because it was post-institution. [00:05:08] Speaker 00: And so it should be complied with. [00:05:11] Speaker 00: And at a very high level, do we disagree with the fundamental presence that there can be some errors that can be corrected? [00:05:19] Speaker 00: But here, there was not a reconsideration of the past decision. [00:05:22] Speaker 00: It was changing the scope of a terminated investigation, and it was not reconsidering what had happened. [00:05:32] Speaker 01: You agree, don't you, that the ITC has the authority to modify a remedial order when it believes that there's been a change in circumstances. [00:05:43] Speaker 00: I agree that Section K allows that if there has in fact been a change in circumstance, it can be modified. [00:05:50] Speaker 01: I know what I'm saying. [00:05:51] Speaker 01: You do agree that the ITC has authority to modify a remedial order when it believes that there's been a change in circumstances. [00:06:01] Speaker 00: Well, I guess I want to make sure I understand the import of your, it believes there's been a change in circumstances. [00:06:06] Speaker 01: I'm just trying to understand your argument. [00:06:09] Speaker 01: Right, my argument is... And I'm asking you a question. [00:06:12] Speaker 00: If there has been a change in circumstances and it may institute modification proceedings, I would quibble only with your, it believes that there has been a change in circumstances because saying it believes it so doesn't mean it isn't. [00:06:24] Speaker 01: Okay, so your answer is yes. [00:06:25] Speaker 00: Of course, yes. [00:06:26] Speaker 00: The statute allows it. [00:06:27] Speaker 01: Is a motion for clarification by one of the parties to the investigation, can that constitute a change of circumstances? [00:06:35] Speaker 00: So I don't think the mere filing of a motion would qualify as changed circumstances. [00:06:40] Speaker 00: The examples that have been done in the past are things like settlement. [00:06:44] Speaker 01: A motion for a clarification of a remedial order, does that [00:06:52] Speaker 01: give the ITC authority to modify one of its orders? [00:06:59] Speaker 01: Would that constitute a changed circumstance? [00:07:01] Speaker 00: I would say no. [00:07:01] Speaker 00: Not the mere filing of a motion does not qualify as changed circumstances. [00:07:06] Speaker 01: What if the clarification was to say there's a topographical error and these three words were left out of the order and everybody agrees to it, that those three words should have been included in the order. [00:07:19] Speaker 01: Are you saying that that's not a change of circumstances that allows the ITC to go back and modify or clarify that remedial order? [00:07:28] Speaker 00: So in your hypothetical, you're saying all parties agree to a modification? [00:07:32] Speaker 00: I would say two things. [00:07:38] Speaker 00: The mere filing of a motion, there's no change of circumstance there in terms of the facts of the investigation. [00:07:45] Speaker 01: I'm not asking if there's one here. [00:07:46] Speaker 01: I'm just asking generally. [00:07:48] Speaker 01: In ITC practice, and under the applicable statutes and regulations, I'm trying to explore here the ITC's authority, which you brought up in your argument. [00:08:02] Speaker 01: OK. [00:08:03] Speaker 00: So I would say, in your hypothetical, where all the parties agree to make a change, that can be done by stipulation. [00:08:10] Speaker 00: I would not characterize that as a change circumstance. [00:08:14] Speaker 01: Well, then are you saying that the ITC can never go back and correct something like that? [00:08:20] Speaker 00: Under Section K, which requires a changed circumstance, I would say no. [00:08:24] Speaker 04: OK, let's assume for the moment that we disagree with you. [00:08:28] Speaker 04: And we conclude that the ITC does have the authority to modify its orders if the language of the order doesn't accomplish what it wants to accomplish. [00:08:38] Speaker 04: Let's assume that that's correct. [00:08:40] Speaker 04: Your theory, as I understand it, is that under those circumstances, if there is a modification as opposed to a clarification of the order, there has to be a new 60-day review period, correct? [00:08:53] Speaker 00: Our view is that if the modification expands the scope of the orders, it's more narrow than just any change at all, it expands the scope of the orders, cannot be done under K, it has to be done under B, and under subsection B, [00:09:07] Speaker 00: It would be a new remedial order, and that would trigger subsection J in presidential review. [00:09:12] Speaker 00: That is our position. [00:09:13] Speaker 04: And how are you injured by the failure of the ITC under those circumstances to provide for a new 60-day presidential review period? [00:09:23] Speaker 04: Is that simply because you've been deprived of the opportunity to bring product into the United States under the bonding provision for the 60-day period? [00:09:34] Speaker 00: It's twofold. [00:09:35] Speaker 00: But the primary injury is that we are denying the opportunity to bring before USTR relevant information and facts about this expanded scope, the gate operators and the commercial operators. [00:09:48] Speaker 00: The public has been denied the opportunity. [00:09:51] Speaker 00: Those people, those products are more often put into fire stations, public governmental hospitals. [00:09:56] Speaker 00: Those members of the public are also denied the opportunity. [00:10:00] Speaker 00: And so we were denied the opportunity to convince [00:10:04] Speaker 00: USTR to disallow the orders entirely. [00:10:07] Speaker 01: What if we were to find that the modification did not expand the scope of the order? [00:10:13] Speaker 00: If you were to find that it did not expand the scope of the order, I think there's still an error here. [00:10:20] Speaker 00: The error is the method, the procedure that was followed, where there was a modification. [00:10:26] Speaker 00: Proceedings opened and terminated on the same day with no notice to the public. [00:10:34] Speaker 00: But your hypothetical, your interpretation, it would obviously take away our argument that Section K does not permit expanding remedial orders. [00:10:45] Speaker 04: But it sounds as though there's been a design around here. [00:10:52] Speaker 04: And Customs, for the moment, has ruled that the design around is non-infringing, correct? [00:10:59] Speaker 04: Where's the irreparable injury going forward if you're able to bring the design around product into the United States without its being excluded? [00:11:08] Speaker 00: So we are certainly, the customs decision is a welcome one. [00:11:11] Speaker 00: It mitigates but does not eliminate the irreparable harm. [00:11:15] Speaker 00: As this court knows, customs is not the last decision. [00:11:18] Speaker 04: And the harm, even to the redesigns, comes in the form... Well, for the moment, I mean, the customs ruling stands and the redesigned product is going to admit it, right? [00:11:27] Speaker 04: I mean, there may be a mechanism to overturn that customs decision, but as long as the customs decision stands, you can bring the redesigned product into the United States, right? [00:11:36] Speaker 00: But these unlawful orders are... Wait, wait. [00:11:38] Speaker 04: Yes? [00:11:40] Speaker 00: As long as the customs decision stands, we can bring the product into the country. [00:11:44] Speaker 00: That's correct. [00:11:45] Speaker 04: So why is... If during that period in which the customs decision stands, how is it that you're irreparably injured by the exclusion order applicable to the original product? [00:11:57] Speaker 00: These unlawful orders are being used to sow fear, uncertainty, and doubt in the marketplace that causes us irreparable harm. [00:12:05] Speaker 00: Even yesterday, overhead door has told people that the litigation continues and further interruption of importation may occur depending on the International Trade Commission's independent evaluation of the redesigned product. [00:12:19] Speaker 04: The enforcement action is imminent. [00:12:21] Speaker 04: Wait, wait, that's amorphous and it's assuming a change in the customs regulation. [00:12:26] Speaker 04: I'd have difficulty in seeing how that's a reparable injury. [00:12:29] Speaker 04: You have said nothing about, for example, an accumulation of the original product, which you're barred from bringing into the United States. [00:12:40] Speaker 04: Why is there a reparable injury when you're able to bring the redesigned product and satisfy your customer needs that way? [00:12:52] Speaker 00: Let me say two things. [00:12:53] Speaker 00: First, on the redesigned products, the actual supply disruption we already experienced [00:13:02] Speaker 00: And the threatened supply disruption via an enforcement action is damaging our brand. [00:13:08] Speaker 00: It's damaging our customer relationships, our industry goodwill, our credibility with the customers. [00:13:13] Speaker 00: These are irreparable harms. [00:13:14] Speaker 04: Can I then assume that you don't have any original product which is being excluded here? [00:13:20] Speaker 00: So the answer is, I was getting to that. [00:13:22] Speaker 00: We cannot move inventory. [00:13:24] Speaker 00: We do have inventory that the orders prevent us from moving. [00:13:29] Speaker 04: You never said anything about that. [00:13:31] Speaker 00: You're right, Your Honor. [00:13:32] Speaker 00: That was not in our declaration, but I confirmed it yesterday with the client to answer your question. [00:13:38] Speaker 05: So did you take the old product that was found to be infringing and convert it, I don't know, by doing something to the code so that they now [00:13:48] Speaker 05: at least in customs view, are no longer infringing? [00:13:52] Speaker 05: Or did you build a whole new generation of gate operators and garage door openers that have different operating codes so that under customs view they no longer infringe? [00:14:07] Speaker 00: So the way I understand it, Judge Chen, is that [00:14:12] Speaker 00: We did not take other products and reflash them. [00:14:16] Speaker 00: That's my understanding. [00:14:16] Speaker 00: I think if not all, the bulk, the hardware, we still buy the same hardware components. [00:14:23] Speaker 00: We built new hardware and then loaded new redesigned software on the products. [00:14:29] Speaker 00: Does that understand your question? [00:14:30] Speaker 00: You understand how you could take another product and just reflash it? [00:14:32] Speaker 05: That's not, I understand what happened. [00:14:34] Speaker 05: I'm trying to understand, did you have some inventory of garage door openers and gate operators [00:14:41] Speaker 05: that were found to be infringing. [00:14:42] Speaker 05: And so you were blocked from importing them. [00:14:46] Speaker 05: But then you just went into that warehouse. [00:14:48] Speaker 05: And with all of those products, you converted them by doing some things to turn off some functionality so that now under Customs View, [00:15:00] Speaker 05: those products, those old products which you converted ended up being deemed by customers to be no longer infringing. [00:15:07] Speaker 00: My understanding is no. [00:15:08] Speaker 00: We're talking brand new manufactured products that happened to use some of the same hardware, if not all the same hardware, and then software was loaded. [00:15:16] Speaker 00: We did not take previously, there wasn't a set of inventory outside the United States already existing that was reflashed. [00:15:24] Speaker 00: We do have inventory in the United States that had not been reflashed and just sitting there that we cannot move. [00:15:30] Speaker 00: But outside the United States, there was not a cache of products that only had their software changed. [00:15:36] Speaker 00: Rather, we manufactured new products and loaded new redesigned software on them. [00:15:42] Speaker 00: That is my understanding. [00:15:43] Speaker 00: We can make representations to the court, if you want, with more specifics. [00:15:49] Speaker 05: But just to put a finer point on it, [00:15:52] Speaker 05: At this point today, given custom's letter, your basis for irreparable harm at this point is based on the view that there is still some specter of [00:16:09] Speaker 05: of being enjoined and blocked from even being able to sell the redesigned product in this country. [00:16:16] Speaker 05: Is that right? [00:16:16] Speaker 00: It is the cloud. [00:16:17] Speaker 00: Is the cloud? [00:16:17] Speaker 00: Yes. [00:16:18] Speaker 00: It's the cloud. [00:16:18] Speaker 00: The cloud, which we say is real. [00:16:21] Speaker 00: It is tangible. [00:16:21] Speaker 00: And over a door, is it being extremely aggressive with the threats? [00:16:27] Speaker 05: What I'm trying to figure out is [00:16:29] Speaker 05: Why can't this just all be resolved in your normal appeal process in front of a normal merits panel instead of in this unique setting of an emergency motion to stay everything pending the appeal when, as a technical matter, you're able to move inventory right now? [00:16:47] Speaker 00: I appreciate the question, Judge Chen. [00:16:51] Speaker 00: What I would say is that the harm to our reputation, our relationship with our customers may never be [00:16:57] Speaker 00: But it may never recover by virtue of these unlawful orders that put a cloud over our products. [00:17:04] Speaker 00: And even the economic loss that typically, the cases say, is not irreparable. [00:17:10] Speaker 00: I mean, that is when it's a recoverable economic loss. [00:17:12] Speaker 00: We don't have a recoverable economic loss here. [00:17:15] Speaker 00: And I think even the Wisconsin gas case that they cite, the NTE Connecticut, another DC circuit that says, we have no mechanism [00:17:25] Speaker 00: to be made whole for all the sales we are losing because of the cloud that these unlawful modified remedial orders put on our products. [00:17:33] Speaker 01: I see I'm way into my red time. [00:17:36] Speaker 01: At the end of the day, in one of your replies, it seems to me that Chamberlain acknowledges that if its redesigned products are allowed into the United States, that it will suffer no irreparable harm. [00:17:50] Speaker 01: So reading that and accepting that at face value, if customers allow us to redesign products to come in, which apparently it will. [00:17:58] Speaker 01: I mean, it's said that it's outside the scope, you redesign products. [00:18:03] Speaker 01: Then it seems to me that by your own language, you don't suffer irreparable harm. [00:18:09] Speaker 01: That precludes me as a matter of law from granting the stay. [00:18:14] Speaker 00: So I appreciate the sentence you're referring to, and I don't think that sentence says there'll be no harm. [00:18:18] Speaker 00: Certainly the harm is mitigated. [00:18:19] Speaker 01: Here's what it says. [00:18:21] Speaker 01: So long as Chamberlain is not permitted to import and distribute these redesigned products, it suffers irreparable harm in the form of damage to customer relationships, et cetera, et cetera. [00:18:31] Speaker 01: So the opposite must be true. [00:18:33] Speaker 01: If they do allow the redesigned products into the United States, you're not going to suffer irreparable harm in those particular areas. [00:18:41] Speaker 01: These are your own words. [00:18:42] Speaker 00: I know there are words. [00:18:44] Speaker 00: And they are silent as to the harm that would continue to be suffered by Chamberlain when they would. [00:18:49] Speaker 01: Well, it's not irreparable. [00:18:51] Speaker 00: We would say it is irreparable. [00:18:52] Speaker 00: As I said, we cannot repair the relationship. [00:18:54] Speaker 01: Then you're contradicting your own words. [00:18:56] Speaker 00: I certainly don't want to tell you how to interpret. [00:18:59] Speaker 00: That is not what we meant. [00:19:00] Speaker 00: I don't think that's what we said, but certainly it's been mitigated There's no question the customs decision has mitigated the harm, but it's not eliminated entirely Okay, unless there are further questions. [00:19:11] Speaker 04: Why don't we hear from mr. Rosen, so I will give you two minutes for a bottle Thank you your honor, may it please the court. [00:19:19] Speaker 03: Would the court like me to start with irreparable harm or with likelihood of success? [00:19:23] Speaker 04: Well, let's talk first about the language of the order, which the original exclusion order said covered articles are limited to the following garage door systems and components thereof. [00:19:37] Speaker 04: How can it be that that language covers gate operators and commercial operators? [00:19:45] Speaker 03: Well, it's in the context of the investigation, Your Honor, and on [00:19:49] Speaker 03: In the ID, the ID had specific findings on this issue at page 13. [00:19:58] Speaker 03: So the final ID here was Exhibit 3 at Overhead Doors, opposition to the motion to stay. [00:20:04] Speaker 04: So there's a page that it... I don't think you're quite answering my question, because in DEFERCA we said you've got to have language in the order which is capable of [00:20:18] Speaker 04: the desired construction. [00:20:20] Speaker 04: And here, the order seems to be pretty explicit. [00:20:24] Speaker 04: It says covered articles are limited to the following, garage door systems and components thereof, so on and so forth. [00:20:33] Speaker 04: How is it that that language can cover gate operators and commercial operators? [00:20:39] Speaker 04: Was that language in the course of the proceeding ever used to describe commercial operators and gate operators? [00:20:49] Speaker 03: uh... yes i mean if you take a look at the time of the idea that the scope of the investigation included gated operators and commercial operators plainly despite the fact that the notice of a big investigation rather than that now those are fighting the fact that those are conclusions of law if chamberlain believes that that analysis is incorrect as a matter of law it's obligated to re-assess the commission and the commission's rules require [00:21:18] Speaker 03: require that type of exhaustion, or else the commission can deem that issue abandoned. [00:21:24] Speaker 03: But it gets worse than that, because at the commission stage, Chamberlain argued, for example, in its statement on public interest, which is exhibit three, to the commission's opposition here, and it's something that I think is a merits penalty, unredacted version of it. [00:21:40] Speaker 03: It gets into gate operators and commercial operators, and then it says, and this part is redacted, and I don't think it really should be, because this has become public, [00:21:48] Speaker 03: at least at that that the recommended exclusion of people to assist order which that point was what was recommended by the a l j at a time when the notice of investigation where it was read here at that time they said nearly all of a couple of groups products and then chamberlain came in with uh... it's it's argument it's declaration arcade operators and commercial operators well and i don't know if you mind what do you know i'd be saying about the recommended stuff [00:22:18] Speaker 03: Well, the ID said that the party's dispute whether Chamberlain's gate operators are within the scope of this investigation. [00:22:25] Speaker 03: And then the ALJ rejected that argument after quoting Chamberlain's statement extensively. [00:22:33] Speaker 03: Now, the ALJ there doesn't get into commercial operators because Chamberlain didn't say a peep about commercial operators. [00:22:41] Speaker 03: you know, in its argument concerning the scope of the investigation at the ALJ stage. [00:22:47] Speaker 04: What I guess I'm asking you is did the AJ say that the term garage door systems covered these other products? [00:23:00] Speaker 03: I think that you, I would acknowledge you didn't expressly say so, but reading the ALJ's initial determination you have to reach, I think that that conclusion is implicit [00:23:10] Speaker 04: Why in the world didn't you solve this problem by opening another 60-day review period when you modified the order? [00:23:26] Speaker 03: I mean, we could do that. [00:23:28] Speaker 03: I mean, the Commission's policy with respect to clarification is that we typically don't do that. [00:23:37] Speaker 03: With the benefit of hindsight here, [00:23:39] Speaker 03: where maybe a lot of this could have been mooted. [00:23:43] Speaker 03: I mean, I think that's something that if this were ever to come up again, the commission would have to seriously consider. [00:23:52] Speaker 05: This is Judge Chen. [00:23:54] Speaker 05: I have a question about Section 337K. [00:23:58] Speaker 05: And to me, that statute and then the corresponding regulation [00:24:06] Speaker 05: They seem to be going to a different kind of circumstance for when it would be appropriate to modify an order. [00:24:14] Speaker 05: And so its application in this particular instance [00:24:19] Speaker 05: doesn't make sense to me at all. [00:24:21] Speaker 05: Could you please explain what first your conception of what 337K covers and then why what happened here could be deemed some kind of change in conditions that no longer, given that some condition no longer exists, it's okay to modify the exclusion order? [00:24:45] Speaker 03: i mean absolutely i think the change in condition here that throughout the commission investigation chamberlain acquiesced to the scope of the investigation including uh... the gate operators the l j found and then it's it's sufficient to the commission repeatedly i've discussed that gate operators i would have thought that i would have thought the change in conditions would have been something like the the the accused products are no longer you know [00:25:14] Speaker 05: that the respondent has abandoned any interest in importing the accused products that have been found to be infringed, or something like that. [00:25:28] Speaker 05: Or maybe the patent has expired, or the patent owner is no longer interested in pursuing the matter because they've settled the case with the respondent. [00:25:39] Speaker 05: And it's that kind of change in condition on the ground [00:25:44] Speaker 05: warrants somehow modifying the exclusion order. [00:25:49] Speaker 03: Well, I mean, those are certainly changes, but so is the situation in which a respondent says one thing to the commission and then after the commission's order issues, collateral attacks the scope of the commission's order based on what it says is the lack of clarity that is completely or at least substantially attributable to it and its conduct in the investigation. [00:26:10] Speaker 03: So I think that it's fair that that is [00:26:12] Speaker 03: within the scope of changed circumstances. [00:26:15] Speaker 03: And I think it's also within the scope of, you know, a tribunal's need to clarify its orders in the face of a party that blows hot and then cold on what the investigation covers. [00:26:29] Speaker 03: I mean, this gets into a lot of what's, I think, an issue in DeFerco, which Judge Deike have asked about, and I want to make sure that I don't miss that. [00:26:39] Speaker 03: I mean, this here is a formal adjudication. [00:26:41] Speaker 03: The orders here affect Chamberlain and no one else. [00:26:45] Speaker 03: The anti-dumping scheme, like rate-making and like other types of orders and like rule-making, affect the public at large. [00:26:52] Speaker 03: These orders only affect Chamberlain. [00:26:54] Speaker 03: The anti-dumping scheme, in part because of statutory requirements under 19 U.S.C. [00:27:01] Speaker 03: 1673E, maybe because of treaty obligations, have extensive scope discussion. [00:27:06] Speaker 03: I mean, the scope discussion into FERCO [00:27:08] Speaker 03: was 45 columns of a Federal Register notice. [00:27:13] Speaker 03: So 15 full pages of a Federal Register notice. [00:27:15] Speaker 04: So usually is the ITC, because it's a judiciary, doesn't have to write a clear order? [00:27:22] Speaker 03: Well, I mean, I'm going to acknowledge this is a mess. [00:27:26] Speaker 03: But the issue is, who is responsible for this mess? [00:27:30] Speaker 04: And Chamberlain is largely responsible for this mess. [00:27:32] Speaker 04: Surely the ITC is in [00:27:35] Speaker 04: large part responsible for this because of the language that you use? [00:27:40] Speaker 03: It was language that Chamberlain acquiesced to. [00:27:43] Speaker 03: I mean, we're not like, you know, we're not like, there are court decisions, including Smith-Kline, where tribunals aren't like pig sniffing for truffles. [00:27:51] Speaker 03: And Chamberlain filed a 300-page post-hearing brief, a 100-page petition. [00:27:58] Speaker 03: The petition didn't get into any of this. [00:28:01] Speaker 03: So yeah, with the benefit of hindsight, does the commission in the future need to do better policing to avoid a circumstance in which a party collaterally attacks its order after having the opportunity to petition for review of something that the ALJ did, but the party didn't? [00:28:18] Speaker 03: Yeah, I think the commission's going to need to do a better job of it. [00:28:21] Speaker 03: But at the same time, sure. [00:28:24] Speaker 01: Counselor, this is Judge Rainer. [00:28:27] Speaker 01: Are the garage door openers in the commercial operators [00:28:31] Speaker 01: Are they the accused products in the Section 337 investigation? [00:28:38] Speaker 03: They are. [00:28:38] Speaker 03: I mean, they're all listed in the complaint. [00:28:40] Speaker 01: And that's on this unit. [00:28:42] Speaker 01: So in addition to the complaint, the products that we're now talking about, these were actually investigated? [00:28:54] Speaker 03: They were investigated. [00:28:55] Speaker 03: They were tried by consent. [00:28:57] Speaker 03: So there was discovery, and there were fine days. [00:29:00] Speaker 03: on these products. [00:29:01] Speaker 03: And then even at the public interest stage, there were arguments and declarations and statements about all of these products. [00:29:11] Speaker 03: One thing I would like to know is that Chamberlain has relied on due process principles that protect members of the public from certain agency decisions. [00:29:24] Speaker 03: But Chamberlain can't step into the shoes of a member of the public. [00:29:30] Speaker 03: And so it had nothing to do with this. [00:29:33] Speaker 04: Yeah, but Mr. Rosenstein, you require that the order itself be distributed to all employees and other people involved. [00:29:42] Speaker 04: So you obviously think that the language of the order is going to be used by employees and others receiving a copy of it to interpret what it means. [00:29:53] Speaker 03: Well, we also send customs, and we send USTR the ID. [00:29:59] Speaker 03: We send them the opinion. [00:30:01] Speaker 03: And you're right. [00:30:02] Speaker 03: What was this as clear as it should be? [00:30:05] Speaker 03: And the answer is no, if Chamberlain's going to collateral attack the scope of the order. [00:30:10] Speaker 03: But then the commission did what it should do, which is to step in and modify and clarify the order to make it conform to what was actually tried and what was understood by the commission and by the parties. [00:30:22] Speaker 03: at the time of the underlying investigation. [00:30:24] Speaker 04: Do you agree that if we conclude that this is a modification rather than a clarification, that there would have to be another 60-day review period by the president? [00:30:38] Speaker 03: I believe that if the court were to find that the effect of this order was to materially widen the scope of the orders as originally issued, it should go through [00:30:52] Speaker 03: another presidential review period that the commission's policy that uh... you have to get our policy is set forth in at that time age but what we believe is that chamberlain is being disingenuous here about the scope of the investigation of the scope of the orders and that under gc circuit case law uh... for example i can follow the four sixty eight after eight twenty six uh... a party uh... is responsible for self-inflicted harm [00:31:19] Speaker 03: and that uh... you can collect and challenge but a complaint of the agency uh... agency conduct where the party is uh... party are itself affected out here could you thank you and i think uh... i think uh... what you talk about rep entry briefly [00:31:42] Speaker 04: The cases that say that financial injury is not irreparable injury that you rely on are all situations where there is the likelihood of being able to collect the financial injury later on, either in a preliminary injunction context through the preliminary injunction bond or in a situation where it's the patentee suing for infringement because it will get damages later on in the case. [00:32:12] Speaker 04: But are there any cases that say that financial injury is not irreparable injury where there is no possibility of recovering the financial injury later on in the proceeding? [00:32:28] Speaker 03: Well, I think probably you have to infer that every case in which this court has denied relief [00:32:35] Speaker 03: to a respondent, by means of a state pending appeal from a commission investigation, would have to implicitly so find. [00:32:43] Speaker 03: I mean, the harm here that Chamberlain complains of, they kept returning to the word cloud, which is about as opposite a word from the concrete specific harm as someone needs to show. [00:32:55] Speaker 03: And I think that if Chamberlain were correct, that any adjudicated infringer who suffers the taint [00:33:02] Speaker 03: of having been a judge to be an infringer would satisfy Chamberlain's test. [00:33:09] Speaker 03: So I'm not aware of anything that would satisfy a irreparable harm here. [00:33:16] Speaker 03: It is my understanding that Chamberlain began to stockpile these redesigned products ready to enter the United States awaiting a customs decision. [00:33:25] Speaker 03: Mr. Bell, I think, is in a better position to discuss the actual business [00:33:30] Speaker 03: uh... situation here i would like to say that in seeking the extraordinary relief it's incumbent upon chamberlain to put it declarations uh... that explain what the nature of its products coming into the united states and it's not good enough to support uh... a motion to stay where the theory of irreparable relief is inconsistent with their state papers as judge reyna found or were noted [00:33:57] Speaker 03: And it also seems to be something that's coming up for the first time by counsel at oral argument apparently on the fly. [00:34:04] Speaker 03: So I hope that that helps. [00:34:07] Speaker 03: Do you have any follow-up questions, Judge Dike? [00:34:12] Speaker 04: I don't see any further questions here. [00:34:13] Speaker 04: Thank you, Mr. Rosenzweig. [00:34:15] Speaker 04: We'll hear from Mr. Carrell. [00:34:16] Speaker 04: Thank you. [00:34:17] Speaker 06: Good morning, Your Honor. [00:34:18] Speaker 06: May it please the court? [00:34:20] Speaker 06: Following up on the last point, I do think there is an independent basis in the lack of irreparable harm to deny this motion without getting into some of the interesting issues regarding the scope. [00:34:30] Speaker 06: And I think, following up on my colleague's point, their theory throughout their motions papers about irreparable harm was that it would be catastrophic to their business. [00:34:39] Speaker 06: It would effectively foreclose them from all of these products, all of the accused products in the United States. [00:34:45] Speaker 06: They repeatedly made that point. [00:34:47] Speaker 06: In their reply, as Judge Raina noted, at pages 10 and 11, they confirmed that that was their theory of irreparable harm, and that if customs were to allow the redesigns, it would mitigate that harm and, we submit, would eliminate it. [00:35:01] Speaker 01: Did it make that argument before customs that they should find the redesign in order to facilitate [00:35:09] Speaker 01: this particular case and somehow? [00:35:12] Speaker 06: I believe it did. [00:35:13] Speaker 06: That's a specific case. [00:35:15] Speaker 06: I think it made the argument that it was necessary to allow those for purposes of business. [00:35:20] Speaker 06: I believe that was made. [00:35:21] Speaker 06: And so at least implicitly, it was kind of looking at this case. [00:35:25] Speaker 06: And in their reply, they also cited the Cisco order, which I think points the way for this court. [00:35:31] Speaker 06: In Cisco, this court held that [00:35:34] Speaker 06: As long as customs would allow the redesigned products, there wouldn't be irreparable harm, and therefore denied to stay on that basis. [00:35:41] Speaker 06: And went on to note, and this is important, I think, it went on to note that even if there was a subsequent proceeding about those redesigned products, that would be dealt with in due course. [00:35:52] Speaker 06: There could potentially be an enforcement action. [00:35:54] Speaker 06: There could potentially be a modification proceeding. [00:35:57] Speaker 06: There would no doubt be an appeal from that, whoever was aggrieved. [00:36:00] Speaker 06: And this court could consider at that time [00:36:02] Speaker 06: whether the factors for a state pending appeal of that new determination were met. [00:36:07] Speaker 06: Now is certainly not the time to take into account the possibility. [00:36:11] Speaker 06: The cloud, as my friend on the other side calls it, when there is no such catastrophic harm now in light of the redesigns, they've told their customers that they were positioned that the redesign is infringing [00:36:23] Speaker 06: I believe we're certainly evaluating customs decision. [00:36:27] Speaker 06: And I think we will probably pursue some sort of proceeding to get that adjudicated. [00:36:32] Speaker 05: How much time do you have to respond to that letter? [00:36:35] Speaker 06: I think it depends on, I don't know the answer for sure, Your Honor. [00:36:38] Speaker 06: But my understanding is that under any of the procedures that we would pursue, it would be at least six, seven, nine, 12 months before there would be any determination that could potentially stop those. [00:36:49] Speaker 06: And then, of course, as I noted, in an appeal of that proceeding, [00:36:53] Speaker 06: I'm sure whoever is aggrieved would argue that it should be state pending appeal and the court could consider whether the irreparable harm occurs at that time. [00:37:01] Speaker 06: But there's certainly no irreparable harm now. [00:37:04] Speaker 04: And so in the interim period, while this is being litigated, the redesigned products will continue to be admitted to the United States? [00:37:10] Speaker 06: That is correct. [00:37:11] Speaker 06: That is correct. [00:37:12] Speaker 06: And Chamberlain has noted in letters to its customers the same day as customs. [00:37:17] Speaker 06: We submitted this as the second exhibit to our 28J letter that the redesigns will ship immediately. [00:37:24] Speaker 06: And it also has noted to its customers in other exhibits that it had stockpiled the redesigns in anticipation of customs allowing it. [00:37:32] Speaker 06: Here's what Chamberlain said at one point in exhibit 21 to our opposition. [00:37:36] Speaker 06: Updates will not affect the overall functionality or reliability of our products and will not impact our ability to supply product in any way. [00:37:46] Speaker 06: So I think that's a pretty clear admission that there's no irreparable harm here. [00:37:49] Speaker 06: And they're having to, as Mr. Rosenzweig said, cobble it together on the fly here at argument. [00:37:55] Speaker 06: I would note that in their 28-J response, they didn't include any of that and in fact didn't mention irreparable harm. [00:38:02] Speaker 06: which I found notable. [00:38:03] Speaker 06: They didn't contest a 28-J assertion that there is now no irreparable harm. [00:38:08] Speaker 06: And I think there is no irreparable harm. [00:38:11] Speaker 05: Getting to the likelihood of success, we're here trying to figure out what does garage door systems mean. [00:38:20] Speaker 05: Does that term is used in the radio? [00:38:24] Speaker 05: And is that a term of art, garage door systems? [00:38:29] Speaker 05: Do people in this field think of the term garage door systems as necessarily encompassing gate operators and commercial operators? [00:38:38] Speaker 06: I don't know for sure. [00:38:39] Speaker 06: I think it's certainly been used colloquially in this proceeding. [00:38:43] Speaker 05: I mean, certainly in this proceeding, the term was introduced by your side in the complaint. [00:38:49] Speaker 05: The complaint says garage door systems. [00:38:51] Speaker 05: Correct. [00:38:51] Speaker 05: And then the commission picked up on that in its notice of investigation. [00:38:56] Speaker 05: That's right. [00:38:57] Speaker 05: And in our quote, garage door systems, and then it carried through on the remedial order. [00:39:02] Speaker 05: And I'm just. [00:39:04] Speaker 05: I'm just wondering, why did your side pick garage door systems when it sounds a lot like garage door openers? [00:39:14] Speaker 05: If you really intended that term to encompass things as disparate as gate operators and commercial operators. [00:39:23] Speaker 06: I think with the benefit of hindsight and now the ambiguity that Chamberlain has introduced, perhaps we would write it differently. [00:39:31] Speaker 06: But I would note that in the complaint, [00:39:32] Speaker 06: We clearly intended it to include gates and commercial operators, which, as an aside, I don't see much reasonable argument that commercial garage doors aren't garage doors. [00:39:42] Speaker 04: But did the complaint use the term garage door systems to include gate operators and commercial operators? [00:39:49] Speaker 04: Yes. [00:39:50] Speaker 04: What did it say? [00:39:51] Speaker 06: At paragraph 4.31, we included a chart that listed all of the accused model numbers, which goes well beyond what we needed to do. [00:40:00] Speaker 06: So to the extent there was any ambiguity. [00:40:02] Speaker 04: Well, that's a different question. [00:40:03] Speaker 04: My question was the specific terminology, garage door systems. [00:40:09] Speaker 04: Is there any statement in the record here that that includes gate operators and commercial operators? [00:40:15] Speaker 06: In the record, absolutely, Your Honor. [00:40:17] Speaker 06: OK, weird. [00:40:18] Speaker 06: So I would point to two things. [00:40:20] Speaker 06: One, there were a series of joint stipulations by the parties. [00:40:24] Speaker 06: Now, does it come right out and say the term garage door systems includes gate operators? [00:40:30] Speaker 06: No, but what it does do is joint stipulation that the accused products in this investigation include gate operators and commercial operators. [00:40:40] Speaker 06: That's at exhibit five of our position. [00:40:41] Speaker 04: But that's a different question. [00:40:43] Speaker 04: That's not using the terminology garage door systems to refer to these other products. [00:40:49] Speaker 06: So fast forwarding then. [00:40:51] Speaker 06: And I would note that Chamberlain throughout the litigation acceded to that scope. [00:40:56] Speaker 06: And then they actually first teed up this issue [00:40:58] Speaker 06: In other words, the meaning of garage door systems. [00:41:01] Speaker 06: And to answer your question, Judge Dyke, I would say this is a usage in the industry where Chamberlain teed that up and finally contested it on the eve of the hearing. [00:41:11] Speaker 06: So we're looking at March of 2021, late March of 2021. [00:41:14] Speaker 06: They first teed it up in their pre-hearing brief, kind of as a throwaway, and they also teed it up in a motion and lemonade shortly thereafter. [00:41:23] Speaker 06: That was twice rejected. [00:41:25] Speaker 06: The ALJ rejected that specific meaning of that term and said, no, it doesn't exclude those other things. [00:41:32] Speaker 06: And in the ID, it rejected it again at pages 13 and 14. [00:41:36] Speaker 06: Those were not petitioned. [00:41:40] Speaker 06: And under standard agency procedures, if you analogize it to claim construction, for example, this court has repeatedly held that if a party gets an adverse claim construction from an ID, [00:41:51] Speaker 06: and doesn't petition to the ITC, that is waived forever. [00:41:55] Speaker 06: That is the meaning of that term for that proceeding. [00:41:58] Speaker 06: That was in the Finnegan case. [00:41:59] Speaker 06: That was in the Allied case that my friends on the other side cited. [00:42:03] Speaker 05: In other words, Chamberlain wanted the ALJ to believe that garage door systems meant only garage door openers. [00:42:11] Speaker 05: And the ALJ disagreed with that. [00:42:14] Speaker 05: And then they didn't petition that dispute to the commission. [00:42:19] Speaker 05: That's absolutely right. [00:42:21] Speaker 04: That's absolutely right. [00:42:22] Speaker 04: Absolutely right in the sense that the AJ said that the preceding covered gate operators and commercial operators were correct in the sense that the AJ, ALJ said this terminology, garage and door systems, includes these other two items. [00:42:40] Speaker 06: It did not expressly have a separate section and say, I'm here by construing this and it means this. [00:42:45] Speaker 06: But what it did do, and I think you look at how Chamberlain teed up the issue. [00:42:49] Speaker 06: Chamberlain teed up the issue exactly as your honor phrased it, that the term garage door systems does not include gate openers and commercial. [00:42:56] Speaker 06: So that was how it was teed up in the mill, and that's how it was teed up for the ID. [00:43:01] Speaker 06: And that's what was rejected. [00:43:03] Speaker 06: So whether the AJ could have gone on and said, and specifically, garage door systems includes these things, I don't think it had to, because it adjudicated those very products throughout the entire investigation. [00:43:16] Speaker 06: It was conceded that a certain garage door product, the C205, for purposes of the 935 patent, was representative of all accused products. [00:43:26] Speaker 06: That's another joint stipulation that's at exhibit six of our opposition, [00:43:31] Speaker 06: And these are Chamberlain's own words. [00:43:33] Speaker 06: The parties agree that C205, which is a residential garage board product, is representative of all accused products. [00:43:42] Speaker 06: And they concurrently joint stipulated that the accused products include commercial and gate operators. [00:43:48] Speaker 06: In the context of this litigation, it's hard to see how they claim any sort of surprise. [00:43:53] Speaker 06: And when they finally did challenge that scope, [00:43:57] Speaker 06: They were rejected. [00:43:58] Speaker 06: They didn't petition. [00:43:59] Speaker 03: So to use Judge Chen's term, it was painfully obvious that [00:44:18] Speaker 06: to everyone throughout, including the commission and all the parties, what the commission believed the scope was. [00:44:24] Speaker 06: And ultimately, if there were any ambiguity, that's precisely what the regulation rule 210.14c is designed to allow. [00:44:33] Speaker 06: What it says is if there are issues that are not expressly in the notice of investigation, but are fairly included in it and were tried by implied consent, [00:44:43] Speaker 06: the ITC can, and this is a quote, shall be allowed at any time to go back and amend that notice. [00:44:51] Speaker 06: So to the extent there were any ambiguity or concerns, the ITC has properly exercised its authority to clarify that under its own regulations. [00:44:59] Speaker 06: And we think that was proper. [00:45:00] Speaker 06: And I don't think there's any cause for a stay pending appeal. [00:45:04] Speaker 06: These are types of issues perhaps interesting that can be decided in the normal course of this appeal, and especially in view of the complete lack of irreparable harm [00:45:13] Speaker 06: By we contend, Chamberlain's own admission, we think that the motion for a state pending appeal should be denied. [00:45:19] Speaker 04: OK. [00:45:19] Speaker 04: Thank you, Mr. Bell. [00:45:20] Speaker 04: Thank you. [00:45:23] Speaker 04: Mrs. Degen, you have two minutes. [00:45:29] Speaker 00: If I could, I'd like to talk a little bit about what we heard from both counsel, which is a lot of regulatory history and not a lot of examination of the actual language of the orders and the notice of investigation [00:45:43] Speaker 00: which is, as this court has said, exactly backwards. [00:45:46] Speaker 00: If we do look at the regulatory history here, which I will focus on because they did, we see that the ITC intentionally chose a narrower phrase, garage door systems, rather than movable barrier operators, which is in the title and elsewhere in the notes of investigation. [00:46:06] Speaker 01: Why didn't you make these objections, raise this fight during the investigation and so on? [00:46:12] Speaker 00: So Your Honor. [00:46:13] Speaker 01: Because I understand that the products we're talking about were the accused products in the 337 investigation. [00:46:21] Speaker 01: Correct? [00:46:22] Speaker 00: So the accused products are defined. [00:46:26] Speaker 01: Were the accused products part of the 337? [00:46:30] Speaker 01: Are the products we're talking about the accused products in the 337 investigation? [00:46:34] Speaker 00: The answer is yes and no. [00:46:35] Speaker 00: So the answer is yes insofar as there was discovery, there were findings, all that is true. [00:46:40] Speaker 00: But the notice of investigation defines the accused products as garage door systems, which is not the broader term, mobile barrier operators. [00:46:49] Speaker 01: Was data submitted with respect to the accused products? [00:46:52] Speaker 00: It was. [00:46:53] Speaker 00: There was Chamberlain complied with discovery, which is broader, can be broader. [00:46:58] Speaker 01: I'm just asking a simple question here. [00:47:01] Speaker 01: Where are the products that we're talking about? [00:47:02] Speaker 01: The accused products that were the subject of the 337 investigation. [00:47:08] Speaker 00: I will say they were not the accused products as defined in the notice of investigation, but discovery was had. [00:47:14] Speaker 00: And they were findings of infringement with respect to one of the patents. [00:47:17] Speaker 01: And on the basis of that, why didn't you make it? [00:47:18] Speaker 01: The arguments you're making now, why didn't you make them then? [00:47:21] Speaker 00: A couple of comments on that, Your Honor. [00:47:24] Speaker 00: First of all, we did not lay behind the log on this. [00:47:26] Speaker 00: This was raised. [00:47:27] Speaker 00: But second, it is not Chamberlain's position to move to amend the notice of investigation. [00:47:33] Speaker 01: Where was it raised? [00:47:34] Speaker 00: It was raised, as counsel mentioned, in the pre-hering brief. [00:47:39] Speaker 00: It should be on the record. [00:47:40] Speaker 00: If we go to you, I have a site here, Your Honor, and you can find it. [00:47:46] Speaker 00: In the modification opinion itself, let me pull the site, list the places where it was raised. [00:47:58] Speaker 05: You had a motion in limine. [00:48:00] Speaker 05: You had a post-hearing brief in front of the ALJ. [00:48:05] Speaker 00: Yes, I was just getting the site. [00:48:06] Speaker 00: I can tell you what they are, but the citation I'd have to pull. [00:48:09] Speaker 00: But yes, it was in the pre-hearing briefing, the motion in the limine. [00:48:12] Speaker 00: It was in the reply brief to the petition. [00:48:15] Speaker 00: It was, I believe, also in a post-hearing brief. [00:48:19] Speaker 01: So you're saying that at those points, you made the argument that gate operators and commercial operators was not part of the investigation. [00:48:27] Speaker 00: Yes, and some of them just said Gates. [00:48:30] Speaker 00: Some operators, some of them said both. [00:48:32] Speaker 00: It was mentioned. [00:48:34] Speaker 00: So we didn't lay behind the law. [00:48:36] Speaker 01: I just didn't see that. [00:48:38] Speaker 01: I just didn't see that you made these arguments at that point. [00:48:43] Speaker 00: We raised it. [00:48:45] Speaker 00: We certainly did. [00:48:45] Speaker 00: The emotional limiting is a good example. [00:48:47] Speaker 01: That gate operators and commercial operators were excluded from the scope of the investigation should not be investigated. [00:48:54] Speaker 00: We said that there should not be evidence in the motion of limine relating to, I believe, gate operators. [00:48:59] Speaker 05: Yes? [00:49:00] Speaker 05: If you believe that gate operators and commercial operators were outside the scope of the investigation and the ALJ was wrong to conclude otherwise, why didn't you preserve that argument and make it in your petition to the commission? [00:49:17] Speaker 00: I understand your question. [00:49:18] Speaker 00: Let me answer it. [00:49:20] Speaker 00: So first, with the motion of limine, there's no obligation. [00:49:22] Speaker 00: I dealt with the hearing. [00:49:24] Speaker 00: So there was no obligation to do an interlocutory petition on that. [00:49:27] Speaker 00: And once the hearing was over, it made little sense to go ahead and argue about promotion limits. [00:49:32] Speaker 05: But after you received the initial decision from the ALJ, finding all of your accused products to be infringing all of these patent claims, that was the time when, on petition to the commission, you could have said, [00:49:45] Speaker 05: We have persisted in this argument throughout the course of the investigation from the ALJ that these particular products, the gate operators and commercial operators, are not properly part of this investigation. [00:49:58] Speaker 05: The ALJ disagreed with us. [00:50:00] Speaker 05: Please correct the ALJ on that. [00:50:03] Speaker 05: You didn't have that in the petition, and I'm wondering why. [00:50:06] Speaker 00: So it's true. [00:50:06] Speaker 00: It's not in the petition. [00:50:08] Speaker 00: The petition, word limited, focused on the [00:50:12] Speaker 00: the things that were common, the arguments that were common to the products. [00:50:17] Speaker 00: But I will say there was no obligation for us to do that. [00:50:20] Speaker 00: So I appreciate it could have been done, just as it could have been done, but there was no obligation to do it. [00:50:25] Speaker 00: Because the notice of investigation cannot be changed by fiat or interpretation by the ALJ. [00:50:30] Speaker 00: It was outside his power, so it was ticked up. [00:50:32] Speaker 00: It couldn't be done. [00:50:33] Speaker 00: It needed a motion, or the ITC had to do a suesponte. [00:50:37] Speaker 00: Neither of which happened. [00:50:38] Speaker 00: OHD never made that motion. [00:50:40] Speaker 00: What it did instead, before the commission, it offered a proposed LEO, this is on page Appendix 34, paragraph 2, that actually used mobile bearer operators as covered articles. [00:50:55] Speaker 00: Instead of making the motion it should have, it tried to use its LEO, proposed LEO, and the commission then rejected that. [00:51:02] Speaker 00: So from our perspective, when we got the order, we had won that issue. [00:51:07] Speaker 00: The commission was well aware of the proper scope of the investigation. [00:51:10] Speaker 00: It saw OHD trying to circumvent their requirement to make a motion and said, no, you can't have that. [00:51:16] Speaker 00: The scope is defined to the notice of investigations. [00:51:19] Speaker 00: Our orders are going to be commensurate with the scope of the notice of investigation. [00:51:23] Speaker 00: It didn't say any of this, but his orders told us and the public that it was garage door systems and that we didn't have to do anything to change it. [00:51:30] Speaker 01: Did you make this argument in relation to the initial determination? [00:51:36] Speaker 00: So I think I was telling Judge Chen, we did not put it in the petition. [00:51:41] Speaker 00: It was not in the petition. [00:51:42] Speaker 00: So that's clear. [00:51:43] Speaker 01: I'm interested in a good, clear response to Judge Chen's question, whether you raised these arguments. [00:51:50] Speaker 01: In other words, did you not forfeit these arguments by failure to raise them with respect to the initial determination? [00:51:58] Speaker 00: We did not forfeit them, but we did, in fact, not put it in the petition. [00:52:03] Speaker 00: to the commission after the final initial determination. [00:52:06] Speaker 00: They were not forfeited. [00:52:07] Speaker 00: It was an issue that was, again, at least mentioned in reply. [00:52:14] Speaker 00: But again, we're saying it wasn't done. [00:52:16] Speaker 00: There's no question we didn't put in a petition. [00:52:18] Speaker 00: But we did not have to. [00:52:19] Speaker 00: And the issue was squarely before the commission insofar as it issued an order after OHD had proposed a broader order using mobile barrier operators [00:52:33] Speaker 01: Under the commission's rules, aren't you required to state any objections or problems that you have with respect to the initial determination? [00:52:44] Speaker 00: The rules talk about you have to include issues in the petition. [00:52:50] Speaker 01: And if you don't, I mean, I think the case law is plenary that if you do not object, [00:52:57] Speaker 01: or file a response to the initial determination, you have forfeited that. [00:53:02] Speaker 01: That's clear exhaustion of administrative remedy law. [00:53:06] Speaker 00: That is certainly the rules. [00:53:08] Speaker 00: But I would say this was utter dicta. [00:53:11] Speaker 00: ALJ was not authorized to do this. [00:53:13] Speaker 00: He did not make it, as Judge Dyken mentioned, didn't make a true interpretation. [00:53:19] Speaker 00: And there was no forwarder or waiver by not putting in the petition. [00:53:23] Speaker 00: And there's no acquiescence. [00:53:25] Speaker 00: If you look at the history. [00:53:26] Speaker 04: So what's the briefing? [00:53:27] Speaker 04: before the Commission as to the scope of the exclusion order? [00:53:34] Speaker 00: Not I think but prior to the modification. [00:53:37] Speaker 04: A moment ago the overhead proposed scope of the order which would cover movable use a broader term movable barriers. [00:53:46] Speaker 04: When did that happen? [00:53:48] Speaker 00: That is part of the briefing before the commission, your honor. [00:53:51] Speaker 00: I can pull. [00:53:54] Speaker 00: I don't have the date on it. [00:53:56] Speaker 00: But as part of the normal practice, is both sides put in proposed orders should the commission choose to issue orders? [00:54:02] Speaker 04: And your proposed order was limited to garage door systems? [00:54:06] Speaker 00: That is my recollection, although that's not in the record. [00:54:09] Speaker 00: I don't have a site for you. [00:54:11] Speaker 04: There was a difference in the scope of the order as proposed by Overhead and by Chamberlain. [00:54:18] Speaker 00: Um... [00:54:19] Speaker 00: If you look at ADD 34 of our brief, you'll see the scope of overhead doors paragraph 2. [00:54:28] Speaker 00: And that talks about defining covered articles as movable barrier-operated systems. [00:54:33] Speaker 00: I don't have in front of me, and I apologize. [00:54:35] Speaker 00: I can certainly get submitted after the argument. [00:54:38] Speaker 00: I don't have the exact language that Chamberlain may have proposed. [00:54:42] Speaker 00: I just don't recall. [00:54:43] Speaker 00: And I apologize. [00:54:43] Speaker 00: I believe they did put in a proposed order. [00:54:45] Speaker 00: But I'll tell you right now, I am not certain. [00:54:47] Speaker 00: And I don't remember the exact language. [00:54:50] Speaker 04: Okay. [00:54:51] Speaker 04: Those are the further questions. [00:54:53] Speaker 04: Thank you, Ms. [00:54:55] Speaker 04: Degna. [00:54:55] Speaker 04: Thank you all, Council. [00:54:57] Speaker 04: The case is submitted.