28
Dec
By Eric Schweibenz
On December 23, 2009, the Commission issued the public version of its opinion in Certain Laser Imageable Lithographic Printing Plates (Inv. No. 337-TA-636).  On November 30, 2009, the Commission issued a notice determining that a violation of Section 337 had occurred in this investigation and the appropriate form of relief is a limited exclusion order.

By way of background, the Complainant in this investigation is Presstek, Inc. (“Presstek”) and the Respondents are VIM Technologies, Ltd., Hanita Coatings RCA, Ltd., Guaranteed Services & Supplies, Inc., AteCe Canada, Spicers Paper, Inc., and Recognition Systems, Inc. (collectively, “Respondents”).  The patents-in-suit are U.S. Patent Nos. 5,339,737 (the ‘737 patent) and 4,487,338 (the ‘338 patent), which are both generally directed to lithographic printing plates suitable for imaging with low-to-moderate power levels of near-infrared laser radiation.  On July 24, 2009, ALJ Gildea issued a final initial determination (“ID”) finding the domestic industry requirement satisfied and finding that a violation of  Section 337 occurred in the importation into the U.S., the sale for importation, or the sale within the U.S. after importation of certain laser imageable lithographic printing plates by reason of infringement of one or more of Claims 1, 10, and 27 of the ‘737 patent, and one or more of Claims 20, 21, and 23 of the ‘338 patent.  See our August 13 post for more details.  On September 24, 2009, the Commission issued a notice determining to review in part the ID by modifying ALJ Gildea’s claim construction but otherwise affirming the ultimate determination of a violation of Section 337.  See our September 25 post for more details.

Claim Construction

In the opinion, the Commission noted that the ALJ found that Respondents waived and/or abandoned claim construction arguments with regard to three claim limitations at issue: (1) “the second layer also being partially transmissive to said radiation,” (2) “the substrate comprises a material that reflects imaging infrared radiation” from the ‘737 patent, and (3) “the substrate comprises means for reflecting imaging radiation” from the ‘338 patent.  The Commission determined in the opinion that while the “ALJ noted that he substantively considered the ‘partially transmissive’ limitation,” the ALJ “did not note the same with respect to the other two limitations, nor did he provide any substantive analysis of the other two limitations.”  In this respect, the Commission “substantively considered Respondents’ proposed constructions and supplemented the ALJ’s claim construction analysis.”

Regarding “the second layer also being partially transmissive to said radiation” limitation, the Commission determined that “the ALJ’s construction is correct because it applies the ordinary meaning of the words used in the claim, as they would be understood by a person of ordinary skill in the art” and Respondents “fail to demonstrate any reason to read limitations from the preferred embodiment into the claim, or any reason why a person of ordinary skill in the art would understand the claim to require them.”

With respect to “the substrate comprises a material that reflects imaging infrared radiation” limitation, the Commission determined that “Respondents’ attempt to import a result of the claimed structure into the claim is improper” and “the plain language of the claim merely requires that the substrate includes reflective material that reflects radiation back to the overlying radiation absorbing layer, as the ALJ concluded.”

As to “the substrate comprises means for reflecting imaging radiation” limitation, the Commission determined that “Respondents once again argue that the ALJ’s construction of the claim term ignores ‘the purpose of the invention.’”  However, the Commission found that the “perceived purpose of the limitation should not be added to the construction of this claim term” and “the function of the means-plus-function claim, to reflect radiation, is clearly set out in the claim itself and properly part of the ALJ’s construction.”

Remedy

In its opinion, the Commission determined that “the appropriate remedy is a limited exclusion order directed towards Respondents’ products found to infringe the asserted claims of the ‘737 and ‘338 patents, and issues, herewith, a limited exclusion order.”  Additionally, the Commission determined not to issue cease and desist orders “because the record evidence fails to show that Respondents keep sufficient inventories of the accused products in the United States.”

Public Interest

According to the opinion, the “facts of this investigation do not implicate the public interest factors” and indeed “the public interest favors the protection of United States intellectual property rights by excluding infringing imports.”  Further, the Commission determined that the record evidence (i) “establishes that demand in the United States for laser imageable lithographic printing plates can be met by Presstek and its legitimate competitors,” and (ii) “does not indicate that an exclusion order on this type of product – laser imageable lithographic printing plates – raises any particular public interest concerns.”

Bond

Regarding the need for the appropriate amount of bond during the 60-day Presidential review period, the Commission determined that “Presstek has failed to establish a need for a bond amount” and thus “no bond is required for infringing products imported during the period of Presidential review.”
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