By Eric Schweibenz
On October 28, 2013, ALJ David P. Shaw issued Order No. 26 in Certain Digital Media Devices, Including Televisions, Blu-Ray Disc Players, Home Theater Systems, Tablets and Mobile Phones, Components Thereof and Associated Software (Inv. No. 337-TA-882).

By way of background, this investigation was instituted on June 12, 2013 and is based on a May 13, 2013 complaint filed by Black Hills Media, LLC (“BHM”) alleging violation of Section 337 in the importation into the U.S. and sale of certain digital media devices that infringe one or more claims of U.S. Patent Nos. 8,028,323; 8,214,873; 8,230,099; 8,045,952; 8,050,652 and 6,618,593.  See our May 16, 2013 and June 20, 2013 posts for more details on the complaint and the notice of investigation, respectively.

According to the Order, Respondents and Intervenor Google Inc. (collectively, the “movants”) filed a joint motion to declassify the identity of two licensees on which BHM relied to satisfy the domestic industry requirement so that interested members of the public could comment on the public interest implications of this investigation.  As alternative relief, movants requested that the identity of the licensees be disclosed in confidence to in-house counsel for the movants.  In Order No. 19, ALJ Shaw requested additional briefing from the two licensees whose identities are at issue here.  See our September 20, 2013 post for more details.  In Order No. 26, ALJ Shaw noted that one of the licensees submitted a confidential response in camera to the ALJ and the other licensee did not submit a response.  The licensee that submitted a response indicated that because BHM has withdrawn a subpoena and no longer relies on certain activities for purposes of establishing a domestic industry in this investigation, the motion to declassify should be denied as moot.

In the Order, ALJ Shaw determined that movants have not shown that declassification of the identities of the licensees is warranted.  Also, ALJ Shaw determined that the alternative relief requested – that the identity of the licensees be disclosed to the in-house counsel of the movants – would serve little purpose in view of the fact that BHM is no longer relying on the activities of the licensees to establish a domestic industry in this investigation.  Accordingly, the motion to declassify the identities of the subject licensees was denied.

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