By Eric Schweibenz
On April 26, 2010, the International Trade Commission issued a notice determining to review in part the final Initial Determination (“ID”) issued by Chief ALJ Paul J. Luckern on February 23, 2010 in Certain Adjustable Keyboard Support Systems and Components Thereof (Inv. No. 337-TA-670).

By way of background, the Complainant in this investigation is Humanscale Corporation (“Humanscale”) and the Respondents are CompX International, Inc. and Waterloo Furniture Components Limited d/b/a CompX Waterloo (collectively, “CompX”).

ALJ Luckern issued the ID in this investigation on February 23, 2010, finding a violation of Section 337 in connection with the importation into the U.S., sale for importation, and sale within the U.S. after importation of certain adjustable keyboard support systems and components thereof.  According to the ID, ALJ Luckern found that CompX did not violate Section 337 with respect to its “Wedge-Brake” products because they did not infringe asserted claims 7 and 34 of U.S. Patent No. 5,292,097 (the ‘097 patent).  However, ALJ Luckern found that CompX did violate Section 337 with respect to its “Brake-Shoe” products because they infringed claim 34 of the ‘097 patent.  The ALJ also found that there was no violation with respect to claim 7 because CompX had established by clear and convincing evidence that claim 7 is invalid for obviousness under 35 U.S.C. § 103.  ALJ Luckern further found that CompX had not established any intervening rights.  Finally, the ALJ found that Humanscale had proved the existence of a domestic industry with respect to the ‘097 patent.  Accordingly, ALJ Luckern recommended that the Commission issue a limited exclusion order and a cease and desist order, and that the bond during the Presidential review period be set at 100 percent of the entered value of the infringing products.  See our March 15, 2010 post for more details.

On March 9, 2010, Humanscale, CompX, and the Commission Investigative Staff (“OUII”) each filed a petition for review of the ID.  On March 17, 2010, CompX filed a reply to Humanscale’s petition, Humanscale filed a consolidated reply to CompX’s and OUII’s petitions, and OUII filed a consolidated reply to Humanscale’s and CompX’s petitions.

After examining the record of the investigation, including the ID, the petitions for review, and the responses to the petitions for review, the Commission decided to review the ID in part.  In particular, the Commission determined to review: (i) the claim construction of the term “frictionally interengagable” recited in claim 34; (ii) infringement of claim 34 by the Brake-Shoe products; (iii) the priority date of claim 34; (iv) invalidity for anticipation and obviousness of claims 7 and 34; and (v) the defense of intervening rights.  The Commission further stated that the economic prong of the domestic industry requirement is already under review, and that “[n]o other issues are being reviewed.”

Additionally, the notice requests briefing on seventeen questions of particular interest to the Commission.

The parties’ briefs to the Commission are due by May 10, 2010, with reply submissions due by May 17, 2010.