On December 3, 2013, Chief ALJ Charles E. Bullock issued Order No. 10 in Certain Laundry And Household Cleaning Products and Related Packaging (Inv. No. 337-TA-891).

In the Order, ALJ Bullock granted a joint motion filed by Complainant The Clorox Company and Respondents Industrias Alen, S.A. de C.V. and Alen USA, LLC to terminate the investigation based on settlement agreement.

Further to our August 20, 2013 and September 26, 2013 posts, on December 2, 2013, ALJ Thomas B. Pender issued Order No. 5 in Certain Sleep-Disordered Breathing Treatment Systems and Components Thereof (Inv. No. 337-TA-890).

According to the Order, ALJ Pender set the procedural schedule for this investigation.  Specifically, ALJ Pender determined that a Markman hearing will commence on December 10, 2013; the evidentiary hearing will commence on April 10, 2014; and any final initial determination will issue no later than August 22, 2014.

On December 3, 2013, ALJ Dee Lord issued the public version of Order No. 21 (dated September 24, 2013) in Certain Mobile Handset Devices and Related Touch Keyboard Software (Inv. No. 337-TA-864).

According to the Order, Respondent Shanghai HanXiang (CooTek) Information Technology Co., Ltd. (“CooTek”) filed a motion for summary determination that CooTek’s Series 5.5 and 5.6  products do not infringe the asserted claims of U.S. Patent Nos. 7,750,891 (the ‘891 patent), 7,098,896 (the ‘896 patent), and 7,453,439 (the ‘439 patent).  CooTek averred that Complainants Nuance Communications, Inc., Swype, Inc., and Tegic Communications, Inc.’s (“Nuance”) expert on the ‘891, ‘896, and ‘439 patents did not analyze the Series 5.5 and 5.6 products.  CooTek asserted that its technical expert opined that the Series 5.5 and 5.6 products do not infringe the ‘891, ‘896, and ‘439 patents.  Accordingly, CooTek argued that summary determination is appropriate because CooTek’s expert opinion that the Series 5.5 and 5.6 products do not infringe the ‘891, ‘896, and ‘439 patents is unrebutted.  In opposition, Nuance argued that if summary determination is granted, it should be limited to the specific versions of the Series 5.5 and 5.6 products at issue in the investigation.  The Commission Investigative Staff supported CooTek’s Motion for Summary Determination.

ALJ Lord determined that Nuance failed to raise a genuine issue of material fact as to the Series 5.5 and 5.6 products’ infringement of the ‘891, ‘896, and ‘439 patents.  ALJ Lord held that CooTek’s expert opinion finding that the Series 5.5 and 5.6 products do not infringe the ‘891, ‘896, and ‘439 patents is unrebutted by Nuance.  Specifically, ALJ Lord noted that Nuance’s expert stated, “I have not offered any opinions as to whether any of the versions above 5.5 infringe.”  Accordingly, ALJ Lord granted CooTek’s Motion for Summary Determination that the Series 5.5 and 5.6 products do not infringe the ‘891, ‘896, and ‘439 patents.

On December 3, 2013, ALJ David P. Shaw issued Order No. 30 in Certain Digital Media Devices, Including Televisions, Blu-Ray Disc Players, Home Theater Systems, Tablets and Mobile Phones, Components Thereof and Associated Software (Inv. No. 337-TA-882).

According to the Order, Non-party Amazon Digital Services, Inc. (“Amazon”) filed a motion to quash the subpoena duces tecum and ad testificandum issued by Complainant Black Hills Media, LLC (“BHM”).  In addition to opposing the motion, BHM filed a cross-motion for a recommendation that the ALJ certify a request to the Commission for enforcement of the subpoena.  In support of its Motion to Quash, Amazon asserted that the identified Amazon Cloud Player software does not include the functionality required by the asserted patents.  In opposition, BHM argued that Amazon’s substantive argument is not relevant to the discovery dispute and is “simply wrong.”

ALJ Shaw determined that Amazon’s argument that its products do not practice the asserted claims of the patents-at-issue does not insulate it from discovery.  ALJ Shaw noted that subsequent updates to Amazon’s Motion to Quash have indicated that Amazon has agreed to produce certain documents.  ALJ Shaw held that the parties remaining discovery dispute regarding “usage data” was not briefed in the pending motions and, if it remains a live dispute, the parties should raise the issue in separate motions.  Accordingly, ALJ Shaw denied Amazon’s Motion to Quash and BHM’s Cross-motion.

On December 2, 2013, the International Trade Commission (the “Commission”) issued a notice regarding the issuance of cease and desist orders and termination of the investigation in Certain Ground Fault Circuit Interrupters and Products Containing Same (Inv. No. 337-TA-739).

By way of background, the Commission issued its final determination on April 27, 2012 finding a violation of Section 337 with respect to U.S. Patent No. 7,737,809 (the ‘809 patent).  Regarding remedy, the Commission issued a general exclusion order and a cease and desist order.  See our February 27, 2013 post for more details.  On August 29, 2012, Complainant Leviton Manufacturing Co., Inc. (“Leviton”) filed a complaint to institute enforcement proceedings.  Following settlement by several respondents, Respondents American Electric Depot Inc. (“AED”); Shanghai ELE Manufacturing Corp. (“Shanghai ELE”); and Shanghai Jia AO Electrical Co., Ltd. (“Shanghai Jia AO”) (collectively, the “Defaulting Respondents”) remained in the proceeding.  On May 22, 2013, ALJ Bullock issued a recommended determination on remedy, which recommended that the Commission issue a cease and desist order prohibiting AED from selling or distributing infringing articles in the U.S.  See our July 9, 2013 post for more details.

According to the Commission’s notice, the Commission determined that the appropriate form of relief consists of cease and desist orders direct to the Defaulting Respondents.  Specifically, the Commission’s Order prohibits the Defaulting Respondents from “conducting any of the following activities in the United States: importing, selling, marketing, advertising, distributing, offering for sale, transferring (except for exportation), and soliciting U.S. agents or distributors for ground fault circuit interrupters and products containing the same that infringe one or more of claims 1-4, 6, 8-11, 13, 15-16, 35-37, 39, and 41-46 of the ’809 patent.”  Having resolved all remaining issues in the investigation, the Commission terminated the investigation.

On December 2, 2013, the International Trade Commission (the “Commission”) issued a notice in Certain Electronic Devices Having Placeshifting or Display Replication Functionality and Products Containing Same (Inv. No. 337-TA-878).

By way of background, this investigation is based on a March 12, 2013 complaint filed by Complainant Sling Media, Inc. (“Sling Media”).  The respondents in the investigation were Monsoon Multimedia, Inc. (“Monsoon”); C2 Microsystems, Inc. (“C2 Microsystems”) (collectively “the Defaulting Respondents”); and Belkin International, Inc. (“Belkin”).  See our April 15, 2013 post for more details on this investigation.  On June 5, 2013, ALJ Pender issued an initial determination terminating the investigation as to Belkin based on a settlement agreement.  See our June 7, 2013 post for more details.  In response to a show cause order, Monsoon moved to terminate the investigation based on a consent order.  ALJ Pender rejected this motion and found Monsoon in default.  See our July 16, 2013 post for more details.  C2 Microsystems did not respond to their show cause order and, likewise, were found in default. 

According to the Order, the Commission determined to issue a limited exclusion order and cease and desist orders directed to the Defaulting Respondents.  The Limited Exclusion Order prohibits the unlicensed entry of Defaulting Respondents’ infringing products.  The Cease and Desist Orders “prohibit, inter alia, the importation, sale, advertising, marketing, and distribution of covered products in the United States by the Defaulting Respondents.”  Lastly, the Commission ordered that the bond for importation during the period of Presidential review be set at 100 percent of the entered value of Defaulting Respondents’ imported products.

On November 29, 2013, the U.S. International Trade Commission issued a press release announcing their vote to institute an investigation of Certain Antivenom Compositions and Products Containing the Same (Inv. No. 337-TA-903).

The investigation is based on an October 20, 2013 complaint and a November 19, 2013 letter supplementing the complaint filed by BTG International Inc., of West Conshohocken, Pennsylvania alleging violations of Section 337 in the importation into the U.S. and sale of certain antivenom compositions and products containing the same that infringe one or more claims of U.S. Patent No. 8,048,414.  See our November 1, 2013 post for more details on the complaint.

According to the Notice of Investigation, the Commission has identified Veteria Laboratories of Mexico; BioVeteria Life Sciences of Prescott, Arizona; Instituto Bioclon S.A. de C.V. of Mexico; Laboratories Silanes SA de CV of Mexico; The Silanes Group of Mexico; and Rare Disease Therapeutics, Inc. of Franklin, Tennessee as the respondents in this investigation.

Lastly, Chief ALJ Charles E. Bullock issued a notice indicating that he will be the presiding Administrative Law Judge in this investigation.

On November 25, 2013, the International Trade Commission (the “Commission”) issued a notice determining to review in part the Initial Determination (“ID”) issued by ALJ E. James Gildea on September 6, 2013 finding no violation of Section 337 in Certain Wireless Consumer Electronics Devices and Components Thereof (Inv. No. 337-TA-853).

By way of background, this investigation is based on a July 24, 2012 complaint filed by Technology Properties Limited LLC, Phoenix Digital Solutions LLC, and Patriot Scientific Corporation (collectively, “Complainants”) alleging violation of Section 337 in the importation into the U.S. and sale of certain wireless consumer electronics devices and components thereof that infringe one or more claims of U.S. Patent No. 5,809,336 (the ‘336 patent).  See our July 26, 2012 and August 24, 2012 posts for more details on the complaint and notice of investigation, respectively.

In the ID, ALJ Gildea found that no violation of Section 337 had occurred.  ALJ Gildea further determined that a domestic industry exists that practices the ‘336 patent.  See our November 5, 2013 post for more details.

According to the November 25, 2013 notice, the parties filed petitions for review of the ID.

After examining the relevant portions of the record of the investigation, including the ID and the parties’ submissions, the Commission determined to review-in-part the ID.  The Commission has determined to review the ID’s findings concerning claim construction and infringement of claims 6 and 13 of the ‘336 patent for all accused products, except for the accused products listed on page eighty-eight of the ID.  The Commission also determined to review the ID’s findings of domestic industry.  The notice states that the parties are requested to brief four specifically enumerated issues.  The Commission stated that the parties’ existing filings adequately present the other issues.

Written submissions are due by December 23, 2013, with reply submissions due by December 30, 2013.

On November 25, 2013, ALJ E. James Gildea issued the public versions of Order Nos. 37 and 38 (both dated November 14, 2013) in Certain Consumer Electronics with Display and Processing Capabilities (Inv. No. 337-TA-884).

According to Order No. 37, Complainant Graphics Properties Holdings, Inc. (“GPH”) filed a motion to compel Respondents Panasonic Corp. and Panasonic Corp. of America (collectively, “Panasonic”) to produce a witness knowledgeable about certain Panasonic source code.  GPH further requested that the deposition occur in the United States.  GPH argued that Panasonic’s deposition witness was unprepared to discuss the pertinent source code.  In opposition, Panasonic asserted that the deposition topic did not require any knowledge of the source code as long as the witness could discuss the “structure, function, operation, and implementation of” the application processor.  The Commission Investigative Staff (“OUII”) agreed with Panasonic’s argument.

ALJ Gildea determined that the deposition topic required a witness with knowledge of the source code because the deposition topic explicitly stated “Source Code.”  ALJ Gildea also noted that GPH specifically requested a source code computer.  As to the depositions location, ALJ Gildea held that the deposition must be held in the United States because it is not feasible to complete all the procedural steps to have the deposition in Japan before the imminent close of fact discovery.  Accordingly, ALJ Gildea granted GPH’s Motion to Compel.

According to Order No. 38, GPH filed a motion to compel Panasonic to produce certain documents and interrogatory responses, as well as to make certain source code available for inspection.  GPH argued that Panasonic is withholding key technical information related to the accused products.  In opposition, Panasonic asserted that it has already produced most of the requested information and that some of the information is not in its possession, custody, or control.  Panasonic further argued that GPH is seeking discovery despite evidence that the accused products do not infringe the asserted patent claims.  OUII supported GPH’s Motion to Compel with respect to the source code.

As an initial matter, ALJ Gildea noted that the sole remaining issue is the production of source code for the accused products.  ALJ Gildea determined that GPH should be permitted to inspect the source code and make its own determination as to whether the accused products infringe the asserted patent claims. Therefore, ALJ Gildea granted GPH’s Motion to Compel with respect to Panasonic’s source code.

On November 25, 2013, ALJ Dee Lord issued the public version of Order No. 21 (dated November 4, 2013) in Certain Two-Way Global Satellite Communication Devices, System and Components Thereof (Inv. No. 337-TA-854).

By way of background, ALJ Lord issued Order No. 17 denying Complainant BriarTek IP, Inc.’s (“BriarTek”) Motion for Leave to Amend Infringement Contentions because of concerns raised by Respondents DeLorme Publishing Company, Inc. and DeLorme InReach LLC (“DeLorme”) that the motion violated the protective order in the co-pending district court litigation.  Order No. 17 stated that BriarTek was free to re-file its motion after obtaining leave from the district court to use confidential material produced in the district court proceeding.

According to Order No. 21, BriarTek filed a motion to renew its Motion to Amend Infringement Contentions after seeking the district court’s permission to use confidential material produced during the litigation.  The district court refused to address the issue because the court determined that BriarTek’s request was asking for an advisory opinion, which the court refused to provide.  Despite this refusal, ALJ Lord granted BriarTek’s Motion to Renew because BriarTek did request permission from the district court, as required by Order No. 17.  Additionally, ALJ Lord noted that DeLorme did not seek sanctions in the district court.

Regarding the merits of BriarTek’s Motion to Amend Infringement Contentions, BriarTek argued that it should be permitted to amend its Infringement Contentions to add the InReach SE product as an accused product because, until recently, DeLorme led BriarTek to believe that the plastics for the InReach SE product were manufactured domestically.  BriarTek asserted that recent depositions and document productions by DeLorme in the co-pending district court proceeding disclosed that the InReach SE plastics are imported into the United States.  BriarTek further argued that DeLorme would not be prejudiced by the amended infringe contentions because DeLorme’s expert’s witness statements addressed the InReach SE product.

In opposition, DeLorme argued that BriarTek failed to demonstrate good cause to amend its infringement contentions because BriarTek could have asked questions regarding the source of the plastics for the InReach SE products during fact discovery.  Additionally, DeLorme asserted that their expert’s witness statement disclosed the source of the InReach SE plastic. 

ALJ Lord determined that DeLorme failed to produce several responsive documents, which disclosed the source of the plastics used in the InReach SE products.  ALJ Lord noted that these same documents were produced in the co-pending district court proceeding.  ALJ Lord held that DeLorme’s failure to produce these documents until after the close of fact discovery justified permitting BriarTek to amend its infringement contentions.  ALJ Lord further determined that permitting BriarTek to amend its infringement contentions would not prejudice DeLorme because DeLorme possessed the underlying information and, therefore, was aware (or should have been aware) of the information.  Accordingly, ALJ Lord granted BriarTek’s Motion to Amend Infringement Contentions.