By Eric Schweibenz
On April 15, 2010, Apple, Inc. (“Apple”) filed a complaint requesting that the ITC commence an investigation pursuant to Section 337.

The complaint alleges that Eastman Kodak Company (“Kodak”) unlawfully imports into the United States, sells for importation, and sells within the United States after importation certain digital imaging devices and related software that infringe certain claims of U.S. Patent Nos. 6,031,964 (the ‘964 patent) and RE 38,911 (the RE ‘911 patent) (collectively “the Asserted Patents”).

According to the complaint, the asserted technologies “relate generally to advancements and innovations in the fields of image processing, power management, and memory architectures in portable digital devices.”  Specifically, the products at issue pertaining to the ‘964 patent include imaging devices for capturing raw image data and a central processing unit that allocates storage locations within a dynamic random-access memory depending on the requirements of the system and the current image data. The ‘964 patent also concerns a power management system to protect data stored in the device's memory if a power failure is detected.  The products at issue pertaining to the RE ‘911 patent include digital image capture devices containing two or more image processors that alter image processing (such as white balance, color, sharpness, resolution,) within the digital image capture device.

In the complaint, Apple asserts that the infringing products include the following Kodak digital cameras and video cameras: the Kodak Z Series of Cameras, including the Z915, Z950, Z1085 IS, and Z1485 IS; the Kodak M Series of Cameras, including the M340, M341, M380, M381, M530, M550, MI033, and MI093 IS; the Kodak C Series of cameras, including the C142, C180, C182, C190, and C913; the Kodak SLICE camera; and the Kodak video cameras, including the Zi6, Zi8, Zxl, and the Zx3 PLAYSPORT.

Apple’s complaint also asserts that “[c]oncurrently with the filing of this complaint, Apple will file a civil action in the U.S. District Court for the Northern District of California accusing Kodak of infringing the Asserted Patents.”  Apple further asserts in the complaint that it is presently involved in pending patent litigations against Kodak concerning patents other than the Asserted Patents in a Section 337 investigation (337-TA-703), and two district court patent litigations in the Western District of New York, all filed by Kodak on January 14, 2010.

With respect to the technical prong of the domestic industry requirement, Apple asserts that its iMac and MacBook portable computers, with pre-installed software, including Mac OS x v.10.6 Snow Leopard, iTunes, iPhoto, Photo Booth and other software, as well as the iPhone practice at least one of the Asserted Patents.

With respect to the economic prong of the domestic industry requirement, Apple asserts that it “made substantial investments in the Apple products that practice the Asserted Patents, including by way of example, investments in engineering, research, and development.”  It further asserts that “[s]ubstantially all of the R&D covered by these investments took place in the United States. In particular, the Apple products that practice the Asserted Patents were conceived, researched, and developed in the United States.”  Apple also asserts that for the 2009 fiscal year, its “net revenues were $36.54 billion, including $13.78 billion from Macintosh product sales, $2.41 billion from software licensing and services, and $6.75 billion from iPhone sales and related products and services.”  Additionally, Apple asserts in the complaint that “[d]uring the 2009 fiscal year, Apple sold 10.4 million 18 Macintosh units and 20.7 million iPhone units.”

As to potential remedy, Apple requests that the Commission issue a permanent limited exclusion order and permanent cease and desist order directed to Kodak.