NEW GRILL OWNERS SHOP LEARN RECIPES GRILL SUPPORT VIDEOS DEALERS SHOP LOCAL SEE YOUR NEAREST DEALERS UNITED STATES INTERNATIONAL TRADE COMMISSION WASHINGTON, D.C. Before The Honorable Dee Lord Administrative Law Judge In the Matter of CERTAIN CLOUD-CONNECTED WOOD- PELLET GRILLS AND COMPONENTS THEREOF Investigation No. 337-TA-1237 RESPONDENT GMG PRODUCTS LLC’s RESPONSE TO COMPLAINT Respondent GMG Products LLC (“GMG”) hereby answers the claims of Complainant Traeger Pellet Grills LLC (“Traeger”). Prior to addressing the specific allegations in the Complaint, GMG offers an initial statement summarizing portions of Traeger’s allegations and GMG’s defenses. INITIAL STATEMENT AND BACKGROUND SUMMARY The present Investigation should not have been requested by Traeger for at least three reasons. First, the Asserted Patents are unenforceable due to Traeger’s knowing failure to name the correct inventors with an intent to deceive and/or perpetrate fraud on the Patent Office. This is set out in detail in GMG’s Fourth Defense below. Second, the Asserted Patents are clearly not infringed by GMG, and not practiced by Traeger either. Third, the Asserted Patents are invalid. Although the complaint and its exhibits are voluminous, Traeger glosses over or entirely ignores important (and required) aspects of each and every asserted claim of the two Traeger patents. Traeger should know that its infringement assertions are defective because its claim charts skip over required limitations not found in the GMG grills. The significance of some of the required patent claim limitations was made clear to Traeger during the Post-Grant Review (“PGR”) process in the U.S. Patent and Trademark Office (“USPTO”), which concluded that certain prior art communication techniques between a mobile phone and a home appliance fell outside the scope of the claims. Quite simply, the USPTO determined that others had used mobile devices and remote computers to wirelessly control home appliances long before Traeger thought of it, and the prior art limited Traeger to a very narrow and specific implementation of such a system. Yet Traeger now accuses GMG of infringement for operating in the same prior art manner that Traeger argued—and the USPTO held—was different than claimed in Traeger’s patents, thus wasting the time and resources of the parties and the Commission. Traeger’s characterization that it is an “innovative grill manufacturing company” and that it developed the technologies in the Asserted Patents is also incorrect. On the contrary, Traeger did not invent the wireless control techniques claimed in its patents, and instead it hired directly or indirectly multiple third-party companies to develop them because Traeger lacked the necessary expertise. It is acceptable, of course, to hire subcontractors for product development assistance, but it is not permissible to exclude them from the resulting patent, which is what happened with the Asserted Patents. The patent statutes clearly require a named inventor to swear under oath and penalty of perjury that he or she is the original inventor of the claimed invention. The inventor of the asserted Traeger patents submitted such a sworn statement, but it was knowingly false and omitted the true inventors because they were outside contractors. As a result, Traeger cannot assert the patents because it omitted certain inventors, Traeger does not exclusively own them, or the Traeger patents are unenforceable because of this omission with an intent to mislead the USPTO, or both. GMG further expects to prove the patents to be invalid. The USPTO upheld the validity of the Asserted Patents based on a limited collection of prior art, but many others had been making and selling wireless grills before Traeger’s introduction. The communication protocols for such prior art grills could not be readily discerned from marketing materials or similar public sources. But with the aid of discovery techniques not reasonably available at the time of the PGR, GMG expects to find prior art which will invalidate the asserted Traeger patents. Wireless remote control of home appliances was ubiquitous long before Traeger claims it invented wireless grills Smart appliances have been well-known since before the turn of the century. Between 2000 and 2015, dozens of companies developed, marketed and sold wireless appliances ranging from thermostats to security and lighting systems to ovens and refrigerators. Discovery is expected to reveal numerous prior uses of mobile devices and remote computers to wirelessly control home appliances long before Traeger claims invention. GMG developed a remote-controlled grill before Traeger did GMG first began work on a wirelessly controlled grill in 2014, selling a WiFi grill in June 2014. At about the same time, GMG began work on an extension of its WiFi grill, publicly announcing in 2014 that it was working on an Internet server system to allow control of a grill with an app running on a mobile phone. In April 2015—more than six months before Traeger filed its initial patent application—a GMG affiliate was granted a utility patent in China, number 2014 2 0434671.4, for “Mobile phone remote control pellet fuel food grill electronic control system.” By July 2016, GMG launched the ability to wirelessly control a grill over the Internet. Traeger lagged behind GMG at every step—from the initial announcement, product development, initial patent filing, and product introduction. Remote-controlled grills were common long before Traeger claimed invention Others besides GMG also developed wireless grills before Traeger. While subpoena discovery is only just underway that will reveal important details that are not readily available about many prior uses, early investigation confirms that a number of third parties introduced wireless pellet grills years prior to Traeger. According to an April 2015 article in Health & Home describing the HPBExpo (industry trade show) held March 3-7, 2015 in Nashville, Tennessee, multiple grill manufacturers, including U.S.-based MAK Grills, LLC and Spanish-based Boneless Grills LLC, demonstrated wireless pellet grills. While Traeger was mentioned as an attendee, in discussing wireless grills Traeger was not to be found: Pellet Grills: Watson is spot-on about wood pellet grills; the category continues to gain momentum and options were plentiful at Expo. Camp Chef added two models to its line-up, the large-sized, Vesta Award-winning Lux with a patented clean-out system, and a smaller, entry-priced unit designed for pellet newbies. Dealers and prospective dealers kept the booths hopping at MAK Pellet Grills, Louisiana Grills, Memphis Wood Fired Grills, Traeger Wood Pellet Grills, Kuma Stoves, and England Stove Works, manufacturers of Smoke-n-Sear pellet grills. The new Boneless Grill, a Vesta finalist, is one of the most innovative – and at up-to-$11,000, one of the most expensive – pellet grills on the market. The premium, marine-grade, stainless-steel unit combines programmable touch-screen controls with iPhone App capability, segregated temperature zones, and volcanic stones to boost cooking temperatures. High-Tech:Boneless Grill is just one of the examples of the growing high-tech grill trend. MAK Grills is another. Bjorkman says the MAK Grills Mobile, a Wi-Fi operating system that remotely controls, programs and monitors temperatures, cook times, smoke levels and more, is now one of the most-requested features on the company’s pellet grills (Source: https://www.hearthandhome.com/magazine/2015-07-31/positive_vibes_real_results.html, accessed January 15, 2021). The Post Grant Review interpreted the patent claims narrowly Traeger’s complaint refers to the PGR of its two patents, celebrating the review decision as upholding the validity of both the 720 and the 833 patents. Traeger omits, however, that the Patent Trial and Appeal Board (“PTAB”) applied the cited prior art in a manner that confirms a very narrow interpretation of the claims—one which cannot be infringed by GMG. Indeed, the requirements of the claims are so specific and narrow that as far as GMG knows, no company — not even Traeger itself—operates a remote-controlled appliance system in the manner claimed. The 720 patent. In the PGR (numbers PGR2019-00024 and -00036), GMG argued that a prior art patent publication to Lee (number 2015/0134727) rendered the claims obvious when combined with other prior art references. The focus of the argument centered on the claimed requirement that a mobile device must send to the cloud an indication that the grill is in network communication with the cloud. In other words, with reference to an excerpted and highlighted version of Figure 3 of the 720 patent reproduced at the right, communication represented by the red arrow must tell the cloud that the grill is connected to the cloud service. This is a very unusual requirement, one that makes little sense from a technical perspective, because if the grill is in network communication with the cloud then the cloud would know it (by virtue of the communication represented by the blue arrows in which the grill is communicating with the cloud service) and would not need the mobile device to send an indication to the cloud with this information. In the PGR, GMG argued that Lee taught the required indication from the mobile device. In the system described by Lee, however, the mobile phone requested state information from the cloud regarding the home appliance. In other words, in the red arrow above, the mobile device makes a equest for state information, but does not inform the cloud that the grill is in network communication. Traeger differentiated Lee in a way that also confirms noninfringement, arguing that even if the request was made with the knowledge that the grill is connected, “a user’s request to learn a device’s status cannot simultaneously indicate the very status that the user has just requested.” (emphasis original). The PTAB concluded that this request by the mobile device for state information from the cloud cannot be an indication to the cloud that the grill is in network communication with the cloud. Thus, Traeger argued, and the PTAB agreed in sustaining the validity of the patent, that a mobile device’s request for state information is not the same thing as the mobile device sending to the cloud an indication that the grill is in network communication with the cloud. The 833 patent. The PGR for the 833 patent (numbers PGR2019-00034 and -00035) addressed similar limitations regarding an “indication” that the grill is in network communication with the cloud. Unlike the 720 patent, in the 833 patent the indication is received by the mobile device rather than being sent from the mobile device. Because the direction of the message is different, the PTAB focused on whether the cited patent publication to Lee described such an “indication.” The PTAB concluded that Lee’s system which sends metadata related to “state information” of the grill is not an indication that the grill is in network communication with cloud, for two reasons. First, the indication of network connectivity must be a specific connectivity indicator, not some other state information from which the fact of connectivity might be inferred. Second, the claims require the indication that the grill “is” presently in network communication with the cloud at the time the indication is sent to the mobile device, not that the grill has been in network communication at some point in the past, even if very recently. With reference to the image reproduced above, if the grill sends information to the cloud through the blue arrows, and then at some time later the cloud sends that information along to the mobile device through the green arrow above, the transmission of such grill data does not satisfy the claim requirement unless it includes an indication that the grill is in network communication with the cloud at the time of the transmission to the mobile device in the green arrow. Thus, the PTAB construed the claims very narrowly (which is exactly as they are written) in sustaining the validity of the patents. The GMG Grills do not infringe the patents—and Traeger knows it Traeger’s complaint ignores the PGR proceedings, and ignores many other claim limitations as well, in order to assert infringement. Although it provides lengthy claim charts, for every single claim there is one or more claim limitation which Traeger brushes aside without meaningfully addressing it. The reason is obvious: Traeger cannot establish the existence of every required claim limitation. Based solely on investigations to date, and without the aid of further discovery, GMG has identified thus far no fewer than 11 independent claim limitations for which there are no corresponding elements in the Accused Products, meaning that none of the six asserted independent claims are infringed, and therefore none of the claims of the patents are infringed. In this brief introduction, GMG highlights just a few of the most obvious missing limitations, some of which are anticipated to be pursued in dispositive summary determinations early in this proceeding. The 720 patent. Traeger’s description of the 720 patent in the complaint pretends the “indication of network communication” requirement was written differently. According to the complaint, the “cloud-connected grill communicates with the mobile device by sending connectivity and other operational information to the cloud-computing platform.” As noted above, every single claim in the 720 patent requires the mobile device to send to the cloud an indication that the grill is in network communication with the cloud. Traeger tries to rewrite the claim by reversing the flow of communication, saying that the grill sends connectivity information to the cloud. Amazingly, Traeger revises the claims in this fashion even though it stressed the importance of the direction of the indication to the PTAB during the PGR. Traeger’s claim chart likewise treats the claims as if the direction of communication were reversed, showing screen displays of a mobile device which relate to grill state information, but pointing to nothing showing that the mobile device sends to the cloud any indication that the grill is in network communication with the cloud. The 833 patent. Traeger’s treatment of the 833 patent is no better. Although the PTAB said that state information is not an indication of network connectivity, and that prior connectivity status indicators are not current even if recent, Traeger again ignores these key points which formed the basis of the decision by the PTAB. Traeger’s claim charts refer only to the receipt of state information by the mobile device, and screen displays indicating times associated with the receipt of that information. But as Traeger argued and the PTAB accepted with respect to the Lee prior art reference, state information is not an indication of network connectivity even if one can infer from the state information that there was a connection at the time the state information was passed along to the cloud. Traeger also completely ignores the claim requirement that the indication must indicate a present network connection between the cloud and the grill, not a past one, even if recent. Additional points of distinction. The above summary is not at all exhaustive. To the contrary, there are numerous additional points of distinction as well. One such point is the requirement across all claims of both patents is that there must be a cloud computing platform. The term “cloud computing” might elicit an array of definitions from different sources, but Traeger supplied one expressly in the patents, and it is an unusually narrow one. According to the patents, cloud computing is defined for purposes of the claims as “a model for enabling on-demand network access to a shared pool of configurable computing resources (e.g., networks, servers, storage, applications and services).” This express definition by Traeger limits the cloud server to a “shared pool” configuration, and excludes the use of a dedicated server. The GMG server is a dedicated one, and by Traeger’s own definition it is not a cloud computing platform. Traeger’s pursuit of this Investigation represents a colossal waste of tax payer and party resources. GMG eagerly anticipates discovery and an opportunity for early disposition of the case on the merits. RESPONSE TO TRAEGER’S ALLEGATIONS IN THE COMPLAINT The numbered paragraphs below correspond to the same numbered paragraphs in the complaint. Likewise, GMG has adopted the headings in the complaint for ease of reference. However, to the extent that such headings themselves contain factual and legal characterizations, GMG denies such characterizations. GMG continues to collect and review all information that may be relevant to the issues raised in this Response. GMG therefore reserves the right to amend or supplement this response, including raising any additional affirmative defenses, based on additional facts or developments that become available or that arise after the filing of this Response. In this light, GMG denies each and every allegation averred in the complaint that is not expressly admitted below. Any admission below is not an admission to any purported conclusions, characterizations, implications, or speculations that might follow from the admitted facts. I. INTRODUCTION 1. The first sentence consists solely of self-serving statements of Traeger’s alleged claims—which GMG denies have any merit—and speaks for itself. GMG denies the remaining allegations of the paragraph. 2. GMG admits the assertion of the first sentence that Traeger is a grill manufacturer, but denies that Traeger is an “innovative” grill manufacturer. GMG lacks knowledge or information sufficient to form a belief as to the truth of the allegations of the second sentence and on that basis denies those allegations. GMG denies the assertion of the third sentence that Traeger has developed “innovative technologies for its grills;” GMM lacks knowledge or information sufficient to form a belief as to the truth of the remaining allegations of the third sentence and on that basis denies those allegations. GMG lacks knowledge or information sufficient to form a belief as to the truth of the allegations of the fourth sentence and on that basis denies those allegations. 3. GMG admits that it imports and sells after importation the products that Traeger identifies as allegedly infringing its patents (the “Accused Products”), except that GMG expressly denies the allegation that GMG’s grills infringe any claim of the Asserted Patents or components thereof. 4. Deny. 5. GMG admits the allegation of the first sentence of the paragraph, but further responds that the claims are much narrower than the general subject matter. GMG lacks knowledge or information sufficient to form a belief as to the truth of the allegations of the third sentence and on that basis denies those allegations. GMG denies the remaining allegations of the paragraph. 6. GMG lacks knowledge or information sufficient to form a belief as to the truth of the allegations of the paragraph and on that basis denies those allegations. 7. GMG admits that Traeger seeks relief as stated, but denies Traeger is entitled to such relief. GMG denies any remaining allegations of the paragraph. 8. GMG admits that Traeger seeks relief as stated, but denies Traeger is entitled to such relief. GMG denies any remaining allegations of the paragraph. 9. GMG admits that Traeger seeks relief as stated, but denies Traeger is entitled to such relief. GMG denies any remaining allegations of the paragraph. 10. GMG admits that Traeger seeks relief as stated, but denies Traeger is entitled to such relief. GMG denies any remaining allegations of the paragraph. II. THE PARTIES A. Complainant 11. GMG lacks knowledge or information sufficient to form a belief as to the truth of the allegations of the paragraph and on that basis denies those allegations. 12. GMG admits the assertion of the first sentence that Traeger is a grill manufacturer, but denies that Traeger is an “innovative” grill manufacturer. GMG lacks knowledge or information sufficient to form a belief as to the truth of the allegations of the second sentence and on that basis denies those allegations, except that GMG specifically denies that Traeger has developed “innovative technologies for its grills, including its cloud-connected technology.” GMG lacks knowledge or information sufficient to form a belief as to the truth of the remaining allegations of the paragraph and on that basis denies those allegations. 13. GMG lacks knowledge or information sufficient to form a belief as to the truth of the allegations of the paragraph and on that basis denies those allegations. B. Proposed Respondent 14. GMG admits the allegations of the paragraph, except denies that GMG is a corporation or that GMG’s manager is located at 316 California Ave., Suite 1065, Reno, Nevada 89509. 15. GMG denies the allegations of the first sentence of the paragraph. GMG admits the allegations of the second sentence. 16. GMG admits that it imports and sells after importation the Accused Products. III. THE PRODUCTS AT ISSUE 17. GMG admits that the products and technology at issue relate to wood-pellet grills, and that the Asserted Patents refer to a “cloud-computing platform,” but denies that the GMG products are “cloud-connected” as that term is defined in the Asserted Patents. 18. GMG admits that the Accused Products are wood-pellet grills and that they are imported into the United States. GMG further responds that the Asserted Patents refer to a “cloudcomputing platform,” but denies that the GMG products are “cloud-connected” as that term is defined in the Asserted Patents. GMG denies the remaining allegations of the paragraph. 19. GMG admits the allegation of the first sentence of the paragraph, but further responds that the claims are much narrower than the general subject matter. GMG denies the allegations of the second sentence of the paragraph as an inaccurate characterization of the claims. GMG lacks knowledge or information sufficient to form a belief as to the truth of the allegations of the third sentence and on that basis denies those allegations. GMG denies the remaining allegations of the paragraph. 20. GMG admits that the Accused Products may be used by an individual to cook a brisket at the individual’s home — a process that may take eight hours or more. GMG denies the remaining allegations of the paragraph. 21. GMG admits that it does not have a license to the Asserted Patents, because the Asserted Patents do not cover the Accused Products and no license is necessary. IV. THE PATENTS AT ISSUE A. The 720 Patent (U.S. Patent No. 10158720) 1. Identification of the Patent and Ownership by Complainant 22. The Asserted Patents and any related assignments or prosecution history speak for themselves. GMG denies the remaining allegations of the paragraph. 23. The Asserted Patents and any related assignments or prosecution history speak for themselves. GMG denies the remaining allegations of the paragraph. 24. The Asserted Patents and any related assignments or prosecution history speak for themselves. GMG denies the remaining allegations of the paragraph. 2. Non-Technical Description of the 720 Patent 25. GMG admits the allegations of the first five sentences of the paragraph, but further responds that the claims are much narrower than the general subject matter. GMG denies the allegations of the sixth sentence regarding connectivity information, and GMG denies the remaining allegations of the paragraph. 26. Deny. 3. Foreign Counterparts 27. GMG lacks knowledge or information sufficient to form a belief as to the truth of the allegations of the paragraph and on that basis denies those allegations. 4. Licenses 28. GMG lacks knowledge or information sufficient to form a belief as to the truth of the allegations of the paragraph and on that basis denies those allegations. B. The 833 Patent (U.S. Patent No. 10218833) 1. Identification of the Patent and Ownership by Complainant 29. The Asserted Patents and any related assignments or prosecution history speak for themselves. GMG denies the remaining allegations of the paragraph. 30. The Asserted Patents and any related assignments or prosecution history speak for themselves. GMG denies the remaining allegations of the paragraph. 31. The Asserted Patents and any related assignments or prosecution history speak for themselves. GMG denies the remaining allegations of the paragraph. 2. Non-Technical Description of the 833 Patent 32. GMG admits the allegations of the first five sentences of the paragraph, but further responds that the claims are much narrower than the general subject matter. GMG denies the allegations of the sixth sentence regarding connectivity information, and GMG denies the remaining allegations of the paragraph. 33. Deny. 3. Foreign Counterparts 34. GMG lacks knowledge or information sufficient to form a belief as to the truth of the allegations of the paragraph and on that basis denies those allegations. 4. Licenses 35. GMG lacks knowledge or information sufficient to form a belief as to the truth of the allegations of the paragraph and on that basis denies those allegations. V. UNLAWFUL AND UNFAIR ACTS COMMITTED BY PROPOSED RESPONDENT — PATENT INFRINGEMENT 36. Deny. 37. Deny. 38. GMG admits receipt of a letter from Traeger dated March 14, 2018 on or about March 20, 2018. GMG admits that it participated in post-grant review (PGR) proceedings involving the Asserted Patents. GMG was served with a copy of the complaint in this investigation and a copy of the complaint filed in the U.S. District Court for the District of Nevada. Referenced documents speak for themselves. GMG denies the remaining allegations of the paragraph, including what if any notice was provided by any referenced documents. 39. Deny. A. Infringement of the 720 Patent 40. GMG admits that it imports and sells the Accused Products, but denies that such products infringe the 720 patent. 41. Deny. 42. Deny. 43. Deny. 44. GMG admits only that it provides product instructions via product manuals and a website, and that it provides a mobile device software application, but otherwise denies all remaining allegations of the paragraph. 45. GMG admits receipt of a letter from Traeger dated March 14, 2018 on or about March 20, 2018. GMG admits that it participated in post-grant review (PGR) proceedings involving the Asserted Patents. GMG was served with a copy of the complaint in this investigation and a copy of the complaint filed in the U.S. District Court for the District of Nevada. Referenced documents speak for themselves. GMG admits that it promotes the sale and use of its products. GMG denies the remaining allegations of the paragraph, including what if any notice was provided by any referenced documents or that any actions by GMG constitute either infringement or willful infringement. 46. GMG admits that it creates, endorses and/or controls content posted on its website domain (greenmountaingrills.com). GMG denies the remaining allegations of the paragraph. 47. Deny. 48. GMG admits that a claim chart is attached to the Complaint as Exhibit 35, but denies that it fully or accurately compares the Asserted Claims to the Accused Products and further denies any allegation of infringement. GMG denies the remaining allegations of the paragraph. B. Infringement of the 833 Patent 49. GMG admits that it imports and sells the Accused Products, but denies that such products infringe the 833 patent. 50. Deny. 51. Deny. 52. Deny. 53. GMG admits only that it provides product instructions via product manuals and a website, and that it provides a mobile device software application, but otherwise denies all remaining allegations of the paragraph. 54. GMG admits receipt of a letter from Traeger dated March 14, 2018 on or about March 20, 2018. GMG admits that it participated in post-grant review (PGR) proceedings involving the Asserted Patents. GMG was served with a copy of the complaint in this investigation and a copy of the complaint filed in the U.S. District Court for the District of Nevada. Referenced documents speak for themselves. GMG admits that it promotes the sale and use of its products GMG denies the remaining allegations of the paragraph, including what if any notice was provided by any referenced documents or that any actions by GMG constitute either infringement or willful infringement. 55. GMG admits that it creates, endorses and/or controls content posted on its website domain (greenmountaingrills.com). GMG denies the remaining allegations of the paragraph. 56. Deny. 57. GMG admits that a claim chart is attached to the Complaint as Exhibit 35, but denies that it fully or accurately compares the Asserted Claims to the Accused Products and further denies any allegation of infringement. GMG denies the remaining allegations of the paragraph. VI. SPECIFIC INSTANCES OF IMPORTATION AND SALE 58. GMG admits only that it has imported and sold the Accused Products, but denies that such products infringe the Asserted Patents and further denies all remaining allegations of the paragraph. 59. Admit. 60. GMG admits the allegations of the first sentence of the paragraph. GMG lacks knowledge or information sufficient to form a belief as to the truth of the allegations of the second sentence and on that basis denies those allegations. 61. GMG lacks knowledge or information sufficient to form a belief as to the truth of the allegations of the paragraph and on that basis denies those allegations. 62. GMG lacks knowledge or information sufficient to form a belief as to the truth of the allegations of the paragraph and on that basis denies those allegations. 63. Admit. VII. THE DOMESTIC INDUSTRY 64. GMG lacks knowledge or information sufficient to form a belief as to the truth of the allegations of the paragraph and on that basis denies those allegations. A. Technical Prong 65. GMG admits only that Traeger sells wood-pellet grills used in conjunction with a mobile application, but GMG lacks knowledge or information sufficient to form a belief as to the truth of the remaining allegations of the paragraph and on that basis denies those allegations. 66. GMG admits that claim charts are attached to the Complaint as Exhibits 37 and 38, but denies that they fully or accurately compare the Asserted Claims to Traeger’s domestic products and denies that they show how Traeger’s products are covered by any claims of the patents. GMG denies the remaining allegations of the paragraph. B. Economic Prong 67. GMG admits that the first sentence of the paragraph is a statement related to the economic prong of the domestic industry requirement of 19 U.S.C. § 1337(a)(2) and (a)(3). GMG lacks knowledge or information sufficient to form a belief as to the truth of the remaining allegations of the paragraph and on that basis denies those allegations. 68. GMG lacks knowledge or information sufficient to form a belief as to the truth of the remaining allegations of the paragraph and on that basis denies those allegations. 69. GMG lacks knowledge or information sufficient to form a belief as to the truth of the remaining allegations of the paragraph and on that basis denies those allegations. 70. GMG lacks knowledge or information sufficient to form a belief as to the truth of the remaining allegations of the paragraph and on that basis denies those allegations. 71. GMG admits that the Declaration of Andrew Rust is attached as Exhibit 39C and includes Traeger’s domestic industry allegations. GMG lacks knowledge or information sufficient to form a belief as to the truth of the remaining allegations of the paragraph and the contents of the Rust declaration and on that basis denies those allegations. VII. HARMONIZED TARIFF SCHEDULE INFORMATION 72. GMG lacks knowledge or information sufficient to form a belief as to the truth of the remaining allegations of the paragraph and on that basis denies those allegations. IX. RELATED LITIGATION 73. GMG admits that the Asserted Patents were asserted against GMG in the referenced action filed on or about that referenced date, but denies that the claims asserted therein have any merit. 74. GMG admits that the Asserted Patent was subject to two PGR proceedings in the referenced actions and resulted in final decisions that certain challenged claims were not unpatentable, and that the actions are no longer pending before the PTAB, but denies that the claims of the Asserted Patent are valid. 75. GMG admits the allegations of the first sentence of the paragraph. GMG denies the remaining allegations of the paragraph. 76. GMG admits that the Asserted Patent was subject to PGR proceedings in the referenced action and resulted in a final decision that certain challenged claims were not unpatentable, and that the action is no longer pending before the PTAB, but denies that the claims of the Asserted Patent are valid. 77. GMG admits the allegations of the first sentence of the paragraph. GMG denies the remaining allegations of the paragraph. 78. GMG admits that the Asserted Patent was subject to two PGR proceedings in the referenced actions and resulted in final decisions that certain challenged claims were not unpatentable, and that the actions are no longer pending before the PTAB, but denies that the claims of the Asserted Patent are valid. 79. GMG admits the allegations of the first sentence of the paragraph. GMG denies the remaining allegations of the paragraph. 80. GMG admits that the Asserted Patent was subject to PGR proceedings in the referenced action and resulted in a final decision that certain challenged claims were not unpatentable, and that the action is no longer pending before the PTAB, but denies that the claims of the Asserted Patent are valid. 81. GMG admits the allegations of the first sentence of the paragraph. GMG denies the remaining allegations of the paragraph. 82. GMG lacks knowledge or information sufficient to form a belief as to the truth of the remaining allegations of the paragraph and on that basis denies those allegations. X. REQUESTED RELIEF GMG denies that Complainant is entitled to any requested relief. RESPONSE TO TRAEGER’S NOTICE OF INVESTIGATION Pursuant to ITC Rule 210.13(b), GMG hereby responds to the Notice issued by the Commission (published in the Federal Register on January 4, 2021). Without admitting any of the specific or general allegations set forth in the Complaint as referenced in the Notice, GMG provides the following response: 1. GMG admits that a Complaint was filed on behalf of Complainant with the Commission on November 25, 2020, purportedly pursuant to the Tariff Act of 1930, as amended, 19 U.S.C. § 1337, and that the Complaint was supplemented on December 10, 2020. GMG admits that the Complaint alleges violations of Section 337 of the Tariff Act, based upon the importation into the United States, the sale for importation, and the sale within the United States after importation of certain wood-pellet grills and components thereof including the digital thermometer, allegedly based on infringement of certain claims of the 720 Patent and the 833 Patent. 2. GMG denies that it or its products violate Section 337 of the Tariff Act of 1930, as amended, by importing, selling for importation, or selling within the United States after importation any Accused Products that allegedly infringe any valid and enforceable claim of the 720 Patent and the 833 Patent. 3. GMG admits that the Complaint alleges that an industry in the United States exists as required by subsection (a)(2) of Section 337. GMG denies that Traeger has established a domestic industry as required by 19 U.S.C. § 1337(a). GMG further admits that Traeger requested that the Commission institute an Investigation and, after the Investigation, issue a limited exclusion order and cease-and-desist order as set forth in the Summary of the Notice. GMG denies that Traeger is entitled to any relief. 4. Further, as set forth in the “Scope of Investigation” section of the Notice, GMG admits that the Commission ordered that an Investigation be instituted pursuant to subsection (b) of the Tariff Act of 1930, as amended. GMG denies that it or its products violates Section 337 of the Tariff Act in any manner, including by reason of infringement of the asserted claims of the 720 Patent and the 833 Patent. 5. GMG denies that issuing a limited exclusion order or cease-and-desist order in this Investigation would be in the public interest. AFFIRMATIVE DEFENSES GMG specifically alleges and asserts the following defenses, undertaking the burden of proof only as to those defenses that are deemed by law to be affirmative defenses. GMG asserts the defenses identified below. GMG’s inclusion of these defenses in this portion of GMG’s Response to Traeger’s Complaint is not a concession that any of these defenses are “affirmative” in nature or that GMG bears the burden of production or the burden of proof with respect to any of these defenses. This Investigation is in its early stages and discovery has just begun. GMG has not had an opportunity to seek and obtain certain evidence and has not been provided with Traeger’s contentions on these issues. Consequently, GMG cannot necessarily identify and set forth the entire evidentiary basis for every possible defense to Traeger’s contentions. Accordingly, GMG reserves the right to supplement and amend these defenses and to assert additional defenses as this Investigation proceeds. First Defense: Noninfringement 1. GMG has not infringed any claims of the 720 patent, whether directly, indirectly, contributorily, or by inducement. 2. GMG has not infringed any claims of the 833 patent, whether directly, indirectly, contributorily, or by inducement. Second Defense: Invalidity 3. The asserted claims of the 720 patent are invalid for failure to meet the requirements of 35 U.S.C. §§ 101, 102, 103 and/or 112 on grounds that the petitioner neither raised nor reasonably could have raised during the PGR. 4. The asserted claims of the 833 patent are invalid for failure to meet the requirements of 35 U.S.C. §§ 101, 102, 103 and/or 112 on grounds that the petitioner neither raised nor reasonably could have raised during the PGR. Third Defense: Unenforceability for Omitted Inventor 5. The 720 patent is unenforceable because Traeger failed to include each inventor on the application leading to the issuance of the Asserted Patent. 6. The 833 patent is unenforceable because Traeger failed to include each inventor on the application leading to the issuance of the Asserted Patent. Fourth Defense: Unenforceability for Fraud 7. The 720 patent is unenforceable for failing to name the correct inventors with an intent to deceive and/or perpetrate fraud on the Patent Office in prosecuting the 720 patent. 8. The 833 patent is unenforceable for failing to name the correct inventors with an intent to deceive and/or perpetrate fraud on the Patent Office in prosecuting the 833 patent. 9. When Traeger decided to develop a wireless grill in 2014, it lacked the technical capability to design the electronic communication aspects that were necessary for it to work. Traeger turned to Tekna, a company in Kalamazoo, Michigan, for help, as it had done on other projects in the past. 10. ___________________________ Traeger assigned to Tekna and its team members the role of project management for the development of a new grill with a smart device application and a cloud portal dashboard._______________________________________________ 11. A company called Dorner Works of Grand Rapids, Michigan was engaged to develop wireless grill controls to work with mobile smart device applications. Another firm called Oven Bits, LLC of Dallas, Texas was engaged for software development for the smart device application. 12. Dorner Works provided engineering and technical innovation and development for the wireless grill. Specifically, Dorner works developed the ability for tighter control on the cooking temperatures in the grills. Dorner Works achieved precise temperature control over a variety of ambient conditions, testing its prototype design in both the heat of summer and the cold of winter. Dorner Works also developed connectivity to allow grill users to monitor and control their grills remotely, using their smart phones, through an updated controller design with that connectivity built in. Dorner Works enabled cloud connectivity and remote firmware updates for the grill through adding WiFi to the redesigned controller. The new controller included an LCD display, could operate customized cook cycles, notify the user when more fuel must be added, and could automatically restart the fire if it sensed the temperature was too low. ________________________________________________________________________________________________________________________________________ __________________________________________________________________________________ _________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________ 16. Over the course of 2015 and 2016, Tekna led the development of the wireless grill project for Traeger, with the assistance of Dorner Works and Oven Bits. 23 17. In the case of both the 720 and 833 patents, the named inventor Michael Colston signed a declaration swearing under penalty of perjury that he was the inventor of the inventions claimed in the patent applications leading to the 720 and 833 patents. Mr. Colston signed the declaration on June 6, 2016, and Traeger filed the same declaration in each of the patent applications for the 720 and 833 patents. 18. Only Mr. Colston is named as an inventor for the 720 and 833 patents, but Mr. Colston and Traeger knew at the time the declaration was signed, and again when it was filed on March 13, 2017 (for the 833 patent) and April 16, 2018 (for the 720 patent), that Mr. Colston was not the actual inventor of the claimed inventions. 19. Traeger and Mr. Colston filed a provisional application in October 2015, followed by a PCT application and thereafter the U.S. utility applications leading to the 720 and 833 patents._________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________ 20. Despite knowing that he did not invent the subject matter claimed in the 720 and 833 patents __________________________________________________________________________________ Mr. Colson and Traeger took no action to correct the inventorship. 21. Mr. Colston lacked the technical background to have invented the subject matter claimed in either the 720 or 833 patents. In each case, the claims of the patents require technology related to cloud computing platforms, transmitters, receivers, and network communications details that could not have been, and were not, conceived or reduced to practice by Mr. Colston. Instead, the true inventors were included among the team from Tekna, Dorner Works, and Oven Bits, or perhaps others that will be revealed in discovery, who were hired to develop the invention. Mr. Colston and Traeger has known this at all relevant time, and knew that when he signed and submitted his declaration for his patent applications that it was false and omitted the true inventors. Fifth Defense: Lack of Patent Ownership 22. Traeger does not have complete ownership of the 720 patent, and therefore may not assert a claim for patent infringement by itself. 23. Traeger does not have complete ownership of the 833 patent, and therefore may not assert a claim for patent infringement by itself. Sixth Defense: Unclean Hands 24. At least because of lack of candor and/or fraud on the Patent Office during prosecution of the Asserted Patents, Traeger is precluded from the relief it seeks. See, in part, details set forth in the Fourth Defense. Seventh Defense: Relief Not In the Public Interest 25. The relief sought by Traeger does not and would not further the public interest and there are strong public policy reasons for denying Traeger’s any relief. Specifically, there is a strong public policy in favor of permitting patent invalidity challenges and against permitting a patentee to enforce an invalid patent claim. Moreover, application of the remedial orders to the GMG products would harm consumers, competitive conditions, and GMG’s domestic industry that designs, offers for sale, sells and distributes Accused Products in the United States. GMG is continuing to obtain and review information related to the Asserted Patents. As such, GMG reserve the right to amend its Response to include other defenses that it may learn of during the course of this Investigation. CONCLUSION WHEREFORE, by reason of the foregoing, GMG respectfully requests that the Commission enter a determination of no violation on at least the following bases: A. That GMG has not infringed either the 720 or 833 patents; B. That GMG has not engaged in unlawful activities or unfair acts; C. That the Asserted Patents are invalid and/or unenforceable; and D. That Traeger failed to satisfy the domestic industry requirement. RESPECTFULLY SUBMITTED: January 26, 2021 /s/ Andrew F. Pratt Lawrence D. Graham LOWE GRAHAM JONESPLLC 701 Fifth Avenue, Suite 4800 Seattle, WA 91084 T: 206.381.3300 F: 206.381.3301 Andrew F. Pratt VENABLELLP 575 7th Street, N.W. Washington, DC 20004-1604 T: 202.344.4000 F: 202.344.8300 Counsel for Respondent GMG Products LLC CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing document was served on the following parties in the manner indicated below on January 26, 2021: The Honorable Lisa Barton, Secretary U.S. International Trade Commission 500 E Street, SW, Room 112 Washington, D.C. 20436 Via Electronic Filing (EDIS) The Honorable Dee Lord Administrative Law Judge U.S. International Trade Commission 500 E Street, SW, Room 317 Washington, D.C. 20436 edward.jou@usitc.gov (Ted Jou) michael.maas@usitc.gov (Michael Maas) Via Electronic Filing (EDIS) Via Hand Delivery Via First Class Mai Via Electronic Mai Jay H. Reiziss McDermott Will & Emery LLP 500 North Capitol Street, NW Washington, DC 20001 T: 202.756.8000 TraegerITC@mwe.com Counsel for Complainant Traeger Pellet Grills LLC Via Electronic Filing (EDIS) Via Hand Delivery Via First Class Mai Via Electronic Mai /s/ Armands Chagnon Armands Chagnon—Paralegal VERIFICATION I, David Baker, declare in accordance with 19 C.F.R. §§ 210.4 and 210.13(b), under penalty of perjury of the laws of the United States, that the following statements are true: I am Manager at GMG Products LLC and am authorized to make this verification for and on behalf of GMG Products LLC; I have read GMG Products LLC’s Response to the Complaint and Notice of Investigation; To the best of my knowledge, information, and belief, based upon reasonable inquiry, the claims, defenses, and other legal contentions in the Response are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law, or the establishment of new law; The allegations or other factual contentions have evidentiary support or arc likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; The denials of factual statements in the Response are warranted on the evidence or are reasonably based on a lack of information and belief; and The Response is not being presented for any improper purpose, such as to harass, or cause unnecessary delay, or needlessly increase the cost of the investigation or related proceeding. 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