20
Dec
By Eric Schweibenz
On December 16, 2011, the International Trade Commission (the “Commission”) issued a notice determining to review in part an Initial Determination (“ID”) issued by ALJ Charles E. Bullock on October 17, 2011 finding no violation of Section 337 in Certain Portable Electronic Devices and Related Software (Inv. No. 337-TA-721). 

By way of background, the Complainant in this investigation is HTC Corporation (“HTC”) and the Respondent is Apple Inc. (“Apple”).  In the ID, ALJ Bullock determined that no violation of Section 337 had occurred by Apple in the importation into the U.S., sale for importation, or sale within the U.S. after importation of certain portable electronic devices and related software.  Specifically, the ALJ found that Apple does not infringe various claims of U.S. Patent Nos. 6,999,800 (the ‘800 patent), 5,541,988 (the ‘988 patent), 6,320,957 (the ‘957 patent), and 7,716,505 (the ‘505 patent).  ALJ Bullock also found that the asserted claims are not invalid.  Lastly, the ALJ found that a domestic industry exists with respect to the ‘988 and ‘957 patents, but not with respect to the ‘800 and ‘505 patents.

According to the December 16 notice, HTC filed a petition for review of the ID—which also included a contingent petition for review—on October 31, 2011.  That same day, Apple filed a contingent petition for review of the ID.  On November 8, 2011, the parties filed responses to the petition and contingent petitions for review.

After examining the record of the investigation, including the ID and the parties’ submissions, the Commission determined to review the ID in part.  In particular, the Commission determined to review ALJ Bullock’s findings with respect to the ‘800 patent.  The Commission also determined to review the ALJ’s construction and finding that the accused portable electronic devices and related software do not meet the “manually operable selector” limitation of independent claim 1 of the ‘988 patent and independent claim 8 of the ‘957 patent.  According to the December 16 notice, after reviewing this limitation, the Commission declined to take a position on it.  The Commission further determined not to review any other issues in the ID. Accordingly, the Commission terminated the investigation with respect to the ‘500, ‘988, and ‘957 patents.

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 nine questions listed in the notice.

Written submissions are due by December 30, 2011, with reply submissions due by January 6, 2012.
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