By Eric Schweibenz
On August 10, 2012, ALJ Thomas B. Pender issued Order No. 22 granting Respondents General Imaging Company, JVC Kenwood Corporation and JVC Americas Corporation, Olympus Corporation and the Olympus Corporation of the Americas, Panasonic Corporation and Panasonic Corporation of North America, Samsung Electronics Co., Ltd. and Samsung Electronics America, Inc., SANYO Electric Co., Ltd. and SANYO North America Corporation, VOXX International Corporation and Audiovox Accessories Corporation, and Yamaha Corporation of America’s (collectively, “Moving Respondents”) motion for early limited claim construction briefing in Certain Electronic Devices Having A Retractable USB Connector (Inv. No. 337-TA-843).

According to the Order, the Moving Respondents argued that while the asserted patents claim a particular type of improved thumb drive, Complainant Anu IP, LLC (“Anu”) accused many respondents of infringement based on the importation and sale of products that are not thumb drives (e.g., digital cameras, camcorders, etc.).  According to the Moving Respondents, whether the term “thumb drive” recited in the preamble of every asserted claim is a limitation is dispositive of infringement by accused products that are not thumb drives.  Further, the Moving Respondents contended that each asserted claim requires that an on-board memory is “coupled” to a male USB connector, and that whether this term requires a physical attachment is also dispositive as to infringement of many accused products.  Thus, the Moving Respondents sought an early schedule for Markman briefing (with no hearing or discovery necessary) on these two claim terms.  Anu opposed the motion, arguing that the majority of respondents do not support the request, that holding two Markman proceedings would unnecessarily complicate the investigation and waste resources (especially because certain respondents have “reached settlements in principle with Anu”), that the terms “thumb drive” and “coupled” are not case-dispositive, and that the Moving Respondents have refused to answer discovery concerning their claim construction positions.  The Commission Investigative Staff did not oppose the motion, but was concerned that an early Markman schedule would not be cost-effective if the Moving Respondents filed multiple briefs, and was not convinced that the two claim terms at issue are case-dispositive.

ALJ Pender granted the motion on the grounds that (1) Anu failed to identify which respondents allegedly no longer supported the motion; (2) Anu’s bald assertion that it has “reached settlements in principle” with certain respondents is entitled to no weight; (3) Anu failed to explain why early briefing on the terms “thumb drive” and “coupled” would result in two Markman proceedings, or why digital cameras, camcorders, etc. should be considered “thumb drives;” and (4) Anu failed to identify any specific discovery request that the Moving Respondents refused to answer.  The ALJ also agreed with the Moving Respondents that no fact or expert discovery is necessary, and did not anticipate holding a Markman hearing.

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