On March 5, 2014, FMC Corp. of Philadelphia, Pennsylvania (“FMC”) filed a complaint requesting that the ITC commence an investigation pursuant to Section 337.

The complaint alleges that Beijing Nutrichem Science and Technology Stock Co., Ltd. of China, Summit Agro USA, LLC of Cary, North Carolina, Summit Agro North America Holding Corp. of New York, New York, and Jiangxi Heyi Chemicals Co. Ltd. of China (collectively, the “Proposed Respondents”) unlawfully import into the U.S., sell for importation, and/or sell within the U.S. after importation certain sulfentrazone active ingredient and formulated sulfentrazone compositions made by a process that infringes one or more claims of U.S. Patent No. 7,169,952 (the ‘952 patent).

According to the complaint, the ‘952 patent relates to a process for making sulfentrazone by reacting an aniline with a sulfonating agent in the presence of dimethylformamide at a temperature range of about 120° C to about 160° C for about 3 to about 7 hours.

In the complaint, FMC states that the Proposed Respondents import and sell products that infringe the ‘952 patent.  The complaint specifically refers to sulfentrazone products labeled as Blanket 4F, SFZ-4SC, and/or SAUSX-01 as infringing products.

Regarding domestic industry, FMC states that its sulfentrazone business is dedicated to exploiting the technology covered by the ‘952 patent.  FMC states that products under its Authority, Spartan, Zeus, BroadAxe, Blindside, Echelon, Dismiss, and Solitare brands exploit the process of the ‘952 patent.  FMC further states that although it manufactures sulfentrazone abroad, its activities in the U.S., including research and development of the process of the ‘952 patent, research and development regarding additional products containing sulfentrazone manufactured by the process of the ‘952 patent, and formulation, packaging, and sale of products containing sulfentrazone constitute a domestic industry for purposes of Section 337.

As to related litigation, FMC states that on January 16, 2014, it filed a complaint relating to the ‘952 patent in the U.S. District Court for the District of Delaware.

With respect to potential remedy, FMC requests that the Commission issue a temporary exclusion order, a temporary cease and desist order, a permanent exclusion order, and a permanent cease and desist order directed at the Proposed Respondents and their agents, distributors, and majority owned business entities, or anyone acting in concert with them.

On February 25, 2014, ALJ David P. Shaw issued the public version of Order No. 21 (dated February 20, 2014) in Certain Crawler Cranes and Components Thereof (Inv. No. 337-TA-887).

According to the Order, Respondents Sany Heavy Industry Co., Ltd. and Sany America, Inc. (collectively, “Sany”) filed a motion for “summary determination that Complainant’s list of alleged trade secrets are not subject to trade secret protection or that Respondents have not misappropriated them.”  Sany argued that many of Complainant Manitowoc Cranes, LLC’s (“Manitowoc”) alleged trade secrets do not qualify for trade secret protection.  Additionally, Sany asserted that many of Manitowoc’s alleged trade secrets were not secrets.  Lastly, Sany argued that Manitowoc failed to provide evidence that Sany misappropriated the alleged trade secrets.

ALJ Shaw determined that there are genuine issues of material fact remaining as to all of Sany’s arguments.  ALJ Shaw held that Manitowoc’s December 26, 2013 amended interrogatory responses and the testimony of Larry Weyers raised genuine issue of material fact as to whether the purported trade secrets are protectable as trade secrets.  Regarding Sany’s assertion that several of Manitowoc’s alleged trade secrets were not secrets, ALJ Shaw held that Manitowoc presented evidence sufficient to raise genuine issues of material fact.  ALJ Shaw also determined that Manitowoc produced testimony and accompanying exhibits sufficient to raise a factual issue about whether Sany misappropriated the alleged trade secrets.  Accordingly, ALJ Shaw denied Sany’s Motion for Summary Determination.

On February 25, 2014, ALJ E. James Gildea issued Order No. 57 in Certain Integrated Circuit Devices and Products Containing the Same (Inv. No. 337-TA-873).

According to the Order, Non-party Cellco Partnership d/b/a Verizon Wireless, Inc. (“Verizon”) filed a motion to present the testimony of its witness, Anthony Dennis, by videoconference at the evidentiary hearing.  Verizon argued that Mr. Dennis’s schedule would make it very difficult for him to testify in person.  Verizon asserted that it was willing to test the videoconferencing equipment in advance of Mr. Dennis’s testimony to ensure that it was functioning properly.

In opposition, Complainant Tela Innovations, Inc. (“Tela”) argued that Verizon’s inconveniences and hardships were of its own doing.  Furthermore, Tela asserted that Verizon’s motion shifted the burden and prejudice to Tela.

ALJ Gildea determined that it would be reasonable to allow Mr. Dennis to testify via videoconference.  Additionally, ALJ Gildea found Tela’s objections speculative.  Accordingly, ALJ Gildea granted Verizon’s Motion.

On February 28, 2014, Baxter International Inc. of Deerfield, Illinois, Baxter Healthcare Corp. of Deerfield, Illinois, and Baxter Healthcare SA of Switzerland (collectively, “Baxter”) filed a complaint requesting that the ITC commence an investigation pursuant to Section 337.

The complaint alleges that Johnson & Johnson Inc. of Brunswick, New Jersey, Ethicon, Inc. of Somerville, New Jersey, Ferrosan Medical Devices A/S of Denmark, and Packaging Coordinators, Inc. of Philadelphia, Pennsylvania (collectively, the “Proposed Respondents”) unlawfully import into the U.S., sell for importation, and/or sell within the U.S. after importation certain hemostatic products and components thereof that infringe one or more claims of U.S. Patent Nos. 8,303,981 (the ‘981 patent), 8,512,729 (the ‘729 patent), 6,066,325 (the ‘325 patent), 8,357,378 (the ‘378 patent), and 8,603,511 (the ‘511 patent) (collectively, the “asserted patents”).

According to the complaint, the asserted patents generally relate to hemostatic products that are used by medical providers to control bleeding during surgery.  In particular, the ‘325 patent relates to biocompatible polymeric compositions and methods of using such compositions to control bleeding while allowing for delivery of drugs and/or other biologically active agents as the composition degrades.  The ‘981 patent relates to methods for preparing and delivering biocompatible polymeric compositions, thereby allowing surgeons to quickly and efficiently prepare the composition and apply it to a target site in a patient’s body while reducing contamination risk.  The ‘729 patent relates to methods for delivering biocompatible polymeric compositions to various treatment sites to treat patients.  Lastly, the ‘378 and ‘511 patents relate to a medical delivery device for the delivery, to a target site in a patient’s body, of biocompatible polymeric compositions having properties that are beneficial for localized drug delivery.

In the complaint, Baxter states that the Proposed Respondents import and sell products that infringe the asserted patents.  The complaint specifically refers to the SURGIFLO product family as infringing products.

Regarding domestic industry, Baxter states that it makes extensive use of the inventions claimed in the asserted patents in its FLOSEAL products, and that it has made and continues to make significant domestic investments in those products.  By way of example, Baxter states that it manufactures and sells its FLOSEAL Hemostatic Matrix products in the U.S.  Baxter further states that its FLOSEAL sales have exceeded $140 million annually since 2010.

As to related litigation, Baxter states that it is currently engaged in litigation against the Proposed Respondents in the U.S. District Court for the Northern District of Illinois, where Baxter is alleging infringement of the asserted patents.  Baxter also refers to two cases in Germany involving unfair competition allegations with respect to Baxter’s FLOSEAL products.

With respect to potential remedy, Baxter requests that the Commission issue a permanent limited exclusion order and permanent cease and desist orders directed at the Proposed Respondents and others acting on their behalf.

On February 26, 2014, the International Trade Commission (the “Commission”) issued a Notice determining to review in part an Enforcement Initial Determination (“EID”) issued by ALJ Thomas B. Pender on January 10, 2014 finding a violation of a consent order in Certain Dimmable Compact Fluorescent Lamps and Products Containing Same (Inv. No. 337-TA-830).

By way of background, the Commission instituted an investigation based on a complaint filed by the Complainants in this investigation, Andrzej Bobel and Neptun Light, Inc. (collectively, “Neptun”), alleging the importation into the U.S., sale for importation, and sale within the U.S. after importation of certain dimmable compact fluorescent lamps (“CFLs”) that infringe claim 9 of U.S. Patent No. 5,434,480 (the ‘480 patent).  The complaint named numerous respondents, including MaxLite, Inc. (“MaxLite”).  On July 25, 2012, the Commission terminated the investigation with respect to MaxLite and entered a consent order preventing MaxLite from importing dimmable CFLs that infringe claim 9 of the ‘480 patent.  MaxLite petitioned the Commission for a modification of the consent order based on a district court proceeding regarding a covenant not to sue.  Additionally, Neptun filed a complaint requesting that the Commission institute a formal proceeding to investigate a violation of the consent order.  The Commission instituted a consolidated formal enforcement and modification proceeding to determine whether MaxLite was in violation of the consent order.  In the EID, ALJ Pender found that MaxLite’s accused CFL bulbs infringed claim 9 of the ‘480 patent, but that Neptun had not demonstrated infringement by MaxLite’s “dimmable CFL Faux Cans” (“Faux Cans”).  See our January 14, 2014 post for more details on this investigation.

According to the Notice, Neptun filed a petition for review of the ALJ’s determination regarding claim construction and noninfringement by the Faux Cans.  After examining the record of the investigation, including the EID and parties’ submissions, the Commission determined to review the EID in part.  In particular, the Commission determined to review ALJ’s construction of the “resonant boosting circuit” limitation and ALJ Pender’s findings that Neptun did not demonstrate infringement by the Faux Cans because Neptun failed to adequately show that (i) there is resonance between the accused boosting capacitor and boosting inducer, and (ii) “the boosting capacitor stores and releases energy to improve the power factor.” 

The Notice also states that the parties are requested to provide further briefing regarding the issues under review.  Additionally, the Notice provides that the Commission is particularly interested in responses to the questions listed in the Notice.  Written submissions are due by March 10, 2014 and reply submissions are due by March 17, 2014.

On February 25, 2014, ALJ E. James Gildea issued Order No. 58 denying Complainant’s motion for summary determination that the asserted claim terms are valid under 35 U.S.C. § 112 ¶¶ 1 and 2 in Certain Integrated Circuit Devices and Products Containing the Same (Inv. No. 337-TA-873).

By way of background, the investigation is based on a complaint filed by Complainant Tela Innovations, Inc. (“Tela”) alleging violation of Section 337 in the importation into the U.S. and sale of certain integrated circuit devices and products containing the same that infringe one or more claims of U.S. Patent Nos. 8,264,049; 8,264,044; 8,258,550; 8,258,547; 8,217,428; 8,258,552; and/or 8,030,689.  See our February 11, 2013 and March 14, 2013 posts for more details on the complaint and the Notice of Investigation, respectively.

According to the Order, Tela filed a motion for summary determination that the claims of the asserted patents are valid under 35 U.S.C. § 112 ¶¶ 1 and 2 because (1) the specifications of the asserted patents provide sufficient written description to set forth the scope of the invention, and (2) the claim terms are amenable to construction and also set forth the scope of the invention such that they are not indefinite.  Respondents opposed the motion.  Tela later filed a notice of partial withdrawal of its motion for summary determination indicating that it only sought summary determination that the asserted claims are definite with respect to the use of relative terms, such as “about” and “substantially,” and a wherein claim term beginning with “wherein either a) the N transistors are transistors of a first transistor type and the P transistors are transistors of a second transistor type, such that the first, second, third, and fourth N transistors are first, second, third and fourth transistors of the first transistor type . . .” (the “Wherein Clause”).

Regarding the terms “about” and “substantially,” Tela argued that the use of the terms in the asserted patents does not render the claims insolubly ambiguous as the Federal Circuit has confirmed that relative terms do not render patent claims so unclear that a person of ordinary skill in the art could not ascertain the scope of the claims.  With respect to the Wherein Clause, Tela argued that the term does not represent a “tautology,” as argued by Respondents and instead, in view of the surrounding claim language and specification, “transistor type” refers to both n- or p- transistors and allows for either to be selected as the first type with the other being defined as the second type. 

With respect to the limitation “about” and the limitation “substantially equal,” Respondents argued that the term of degree for the limitations was not defined in the intrinsic record and that a person of ordinary skill would be unable to determine the amount of deviation that would be considered “immaterial” to meet the claims.  Regarding the term “substantially co-aligned,” Respondents argued that a person of ordinary skill would not have understood the metes and bounds of the claims to the extent the term was defined to mean something other than “aligned such that the common line of extent passes through each gate electrode.”  Additionally, Respondents argued that the term “substantially linear” is indefinite if not defined to incorporate the definitions of the separate terms “substantially” and “linear” contained in the provisional application for the ‘049 patent.  With respect to the Wherein Clause, Respondents argued that the term does not present alternative claiming and that the intrinsic evidence does not contain guidance on how to construe the clause or the term “transistor type.”

In the Order, ALJ Gildea found that, with respect to the terms “about” and “substantially,” Tela had misapplied Federal Circuit precedent and that while the Federal Circuit has held that using words of degree does not automatically render a claim indefinite and invalid, the Federal Circuit has not said that the use of these terms is never indefinite.  ALJ Gildea further noted that Tela provided no support for its position that summary determination of definiteness was appropriate with respect to these terms of degree.  Regarding the Wherein Clause, ALJ Gildea found that Tela’s arguments and evidence were insufficient to support granting summary determination as Tela did not identify the claim language and portions of the specification that supported its position.  ALJ Gildea further noted that Tela was requesting a premature claim construction ruling and that an evidentiary hearing and further briefing on the issues would be beneficial.  Accordingly, ALJ Gildea denied the motion for summary determination.

On February 25, 2014, ALJ Dee Lord issued Order No. 23 in Certain Portable Electronic Communications Devices, Including Mobile Phones and Components Thereof (Inv. No. 337-TA-885).

By way of background, this investigation is based on a May 23, 2013 complaint filed by Nokia Corporation and Nokia Inc. (collectively, “Nokia”) alleging violation of Section 337 in the importation into the U.S. and sale of certain portable electronic communications devices, including mobile phones and components thereof that infringe one more claims of U.S. Patent Nos. 6,035,189; 6,373,345; 6,711,211; 7,187,945; 8,140,650; and 8,363,824.  The Respondents in this investigation are HTC Corporation, HTC America, Inc. (collectively, “HTC”) and Google, Inc.  See our June 24, 2013 and July 19, 2013 posts for more details on this investigation.

In the Order, ALJ Lord granted a joint motion filed by Nokia and HTC to terminate the investigation in its entirety based on a settlement agreement.  According to the Order, Respondent Google did not oppose the joint motion.

On February 24, 2014, Chief ALJ Charles E. Bullock issued Order No. 35 in Certain Tires and Products Containing Same (Inv. No. 337-TA-894).

According to the Order, ALJ Bullock granted a motion filed by Complainants Toyo Tire & Rubber Co., Ltd.; Toyo Tire Holdings of Americas Inc.; Toyo Tire U.S.A. Corp.; Nitto Tire U.S.A. Inc.; and Toyo Tire North America Manufacturing Inc. to terminate the investigation as to Respondents South China Tire and Rubber Co., Ltd and Guangzhou South China Tire based on a settlement agreement.

The Investigation remains pending against other Respondents.

On February 19, 2014, ALJ David P. Shaw issued the public version of Order No. 21 (dated February 6, 2014) in Certain Multiple Mode Outdoor Grills and Components Thereof (Inv. No. 337-TA-895).

According to the Order, ALJ Shaw granted Complainants A&J Manufacturing, LLC and A&J Manufacturing, Inc.’s motion to terminate the investigation as to Respondents Kmart Corp., Sears Brands Management Corp., and Sears, Roebuck & Company (collectively, ”Respondents”) based on withdrawal of the complaint as to these Respondents.

On February 24, 2014, Chief ALJ Charles E. Bullock issued the public version of Order No. 33 (dated January 27, 2014) in Certain Windshield Wiper Devices and Components Thereof (Inv. No. 337-TA-881).

According to the Order, Complainants Federal-Mogul Corp. and Federal-Mogul SA (collectively, “Federal-Mogul”) moved for summary determination that they satisfy both the economic and technical prongs of the domestic industry requirement.  Respondents Trico Products Corp. and Trico Componentes SA de CV (collectively, “Trico”) along with the Commission Investigative Staff (“OUII”) filed responses to the motion and did not dispute that Federal-Mogul has satisfied the existence of the economic prong of the domestic industry requirement.  Both Trico and OUII, however, opposed the motion as to the technical prong.  On December 18, 2013, ALJ Bullock issued an order denying Federal-Mogul’s motion as to the technical prong, but noting that a separate order would issue as to the economic prong.  See our December 20, 2013 post for more details. 

In Order No. 33, ALJ Bullock granted the motion as to the economic prong.  In coming to his conclusion, ALJ Bullock noted that neither Trico nor OUII had disputed that Federal-Mogul’s domestic activities satisfy the economic prong.  The details of Federal-Mogul’s domestic activities have been completely redacted from the public version of the order.