By Eric Schweibenz
On July 22, 2010, the International Trade Commission issued a notice determining to review in its entirety an Initial Determination (“ID”) issued by Chief ALJ Paul J. Luckern on June 22, 2010 construing various claim terms of U.S. Patent No. 6,292,218 (the ‘218 patent) 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 and the Respondents are Research In Motion, Ltd., Research In Motion Corporation, and Apple Inc. (collectively, “Respondents”).  The Commission instituted the investigation on February 17, 2010.  On April 26, 2010, ALJ Luckern issued an order granting Respondents’ motion requesting a Markman hearing, and a Markman hearing was conducted on May 24–25, 2010.  The ALJ issued the ID construing claim terms on June 22, 2010.  See our July 21, 2010 post for more details.

According to the July 22 notice, the parties each filed petitions for review of various portions of the ID.

After examining the record of the investigation, including the ID and petitions for review, the Commission determined to review the ID in its entirety and to solicit briefing with respect to the issues on review.  The Commission stated that it was “particularly interested in briefing on the question of the legal authority for addressing the issue of claim construction as a matter for summary determination and treating the claim construction ruling as an initial determination under the Commission’s rules of practice and procedure as currently written.”

In this connection, the Commission requested that the parties respond to a hypothetical analysis of Commission Rule 210.18(a) whereby that rule’s restriction on motions for summary determination to “issues to be determined in the investigation” or parts thereof is interpreted so as to exclude claim construction from the universe of questions that can form the subject of a motion for summary determination.  In particular, the Commission stated in its hypothetical analysis that “[c]laim construction may be a necessary underpinning to the resolution of certain issues or elements, and may be part of a summary determination that addresses an issue or element.  On its own, however, claim construction might not be viewed as constituting such an issue or element.”

Written submissions in response to the Commission’s July 22 notice are due on August 5, 2010, with reply submissions due on August 16, 2010.