By Eric Schweibenz
On June 29, 2012, the International Trade Commission (the “Commission”) issued a notice determining to review the final initial determination (“ID”) issued by ALJ David P. Shaw on April 23, 2012 finding a violation of Section 337 in Certain Gaming and Entertainment Consoles, Related Software, and Components Thereof (Inv. No. 337-TA-752).  The Commission’s notice also included an order remanding the investigation to the ALJ.

By way of background, the investigation is based on a complaint filed by Motorola Mobility, Inc. and General Instrument Corporation (collectively, “Motorola”) alleging violation of Section 337 by Respondent Microsoft Corp. (“Microsoft”) for its importation into the U.S. and sale of certain models of Microsoft’s popular Xbox product.  See our November 24, 2010 post for more details.  On April 23, 2012, ALJ Shaw issued an ID which found that a violation of Section 337 occurred by reason of infringement of certain valid claims of U.S. Patent Nos. 5,357,571 (the ‘571 patent); 6,069,896 (the ‘896 patent); 6,980,596 (the ‘596 patent); and 7,162,094 (the ‘094 patent).  See our May 24, 2012 post for more details on the public version of the ID.

According to the notice, on May 7, 2012, Microsoft filed a petition for review of the ID and Motorola filed a petition and contingent petition for review.  Each party filed a response to the other party’s petition.  Microsoft, along with several non-parties, also filed statements on the public interest in response to the ALJ’s recommended determination (“RD”) on remedy and bonding.  See our May 31, 2012 post for more details on the RD.  On June 22, 2012, Microsoft filed a motion for partial termination of the investigation as to the ‘094 and ‘596 patents.  

After examining the record of the investigation, the Commission determined to review the ID in its entirety.  The Commission also remanded the investigation to the ALJ to “(1) apply the Commission’s opinion in Certain Electronic Devices with Image Processing Systems, Components Thereof, and Associated Software, Inv. No. 337-TA-724, Comm’n Op. (Dec. 21, 2011); (2) rule on Microsoft’s motion for partial termination of the investigation …; and (3) set a new target date for completion of the investigation,” which allows four months for Commission review.