By Alex GasserOn March 25, 2011, the International Trade Commission (the “Commission”) issued a notice determining to review an Initial Determination (“ID”) issued by Chief ALJ Paul J. Luckern on January 24, 2011 in Certain Mobile Telephones and Wireless Communication Devices Featuring Digital Cameras, and Components Thereof (Inv. No. 337-TA-703).
By way of background, the Complainant in this investigation is Eastman Kodak Company (“Kodak”) and the Respondents are Research In Motion, Ltd., Research In Motion Corporation (collectively, “RIM”), and Apple Inc. (“Apple”) (RIM and Apple collectively, the “Respondents”). In the ID, ALJ Luckern determined there was no violation of Section 337. More specifically, ALJ Luckern determined that (i) none of Respondents’ accused products infringed the sole claim now at issue: claim 15 of U.S. Patent No. 6,292,218 (the ‘218 patent); (ii) claim 15 of the ‘218 patent is invalid for obviousness under 35 U.S.C. § 103; (iii) the domestic industry requirement is satisfied with respect to the ‘218 patent; and (iv) if the Commission disagrees with the finding of no violation, the Commission should issue a limited exclusion order and cease and desist orders directed to Respondents, and no bond should be required during the Presidential review period. See our March 18, 2011 post for more details.
According to the March 25 notice, Kodak, RIM, Apple, and the Commission Investigative Staff each filed petitions for review of the ID on February 7, 2011. On February 15, 2011, the parties filed responses to the petitions.
After examining the record of the investigation, including the ID and the parties’ submissions, the Commission determined to review the ID in its entirety. The notice states that the parties are requested to submit briefing on the issues under review and on remedy, the public interest, and bonding. The notice further states that the Commission is particularly interested in responses to the following questions:
1. Kodak has argued in its petition for review that the ALJ made a ruling on obviousness with respect to prior art combinations that Kodak did not have an opportunity to address. The parties should address whether the ALJ permissibly relied on these prior art combinations and whether these combinations render claim 15 invalid for obviousness.
2. Kodak has argued in its petition for review that the ALJ did not address the claim constructions of the presiding ALJ in Inv. No. 337-TA-663. The parties should address whether the ALJ should have considered the claim constructions in Inv. No. 337-TA-663 and what effect those constructions should have in this case.
3. Kodak has argued in its petition for review that the ALJ did not address the reexaminations at the U.S. Patent and Trademark Office of the ‘218 patent. The parties should address whether the ALJ should have considered the reexaminations and what effect those reexaminations should have in this case.
4. Please explain whether, U.S. Patent No. 5,493,335 is prior art, and if so, on what statutory basis.
5. What is the meaning of “color pixel value” in part (b) of claim 15? Is it “the value of a color pixel”? In your answer, address the patent’s discussion of each red, green, or blue element of a display being a “pixel” (column 8 lines 17-28).
Written submissions are due by April 8, 2011, with reply submissions due by April 15, 2011.