By Eric Schweibenz
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May
09
On May 3, 2011, ALJ E. James Gildea issued the public version of Order No. 18 (dated February 11, 2011) in Certain Electronic Devices with Image Processing Systems, Components Thereof, and Associated Software (Inv. No. 337-TA-724).  In the Order, ALJ Gildea denied Respondent Apple Inc.’s (“Apple”) motion seeking summary determination that Complainants S3 Graphics Co., Ltd. and S3 Graphics, Inc. (collectively, “S3G”) failed to satisfy the economic prong of the domestic industry requirement.

In support of its motion, Apple relied on the deposition of Melody Chao who was S3G’s designated corporate witness.  S3G and the Commission Investigative Staff (“OUII”) opposed the motion.  Specifically, S3G argued that (i) Apple misrepresented the facts relating to economic domestic industry, and (ii) Ms. Chao is an accountant who authenticated numerous financial documents detailing S3G’s domestic expenditures and that it was not her role to answer detailed descriptions of the technical work performed by S3G’s employees.  OUII argued that genuine issues of material fact exist that precluded a finding of summary determination.


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By Eric Schweibenz
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May
09
On May 5, 2011, ALJ E. James Gildea issued the public version of Order No. 25 (dated March 4, 2011) in Certain Electronic Devices with Image Processing Systems, Components Thereof, and Associated Software (Inv. No. 337-TA-724).  In the Order, ALJ Gildea (1) granted Complainants S3 Graphics Co., Ltd. and S3 Graphics, Inc.’s (collectively, “S3G”) motion to strike the expert report of Respondent Apple Inc.’s (“Apple”) expert Dr. Jerry A. Hausman regarding licensing and patent exhaustion and (2) granted-in-part S3G’s motion to strike Dr. Hausman’s expert report regarding remedy.

According to the Order, on February 7, 2011, S3G filed dual motions to strike two expert reports of Dr. Hausman.  S3G stated that Dr. Hausman had submitted three expert reports in the investigation:  one concerning the economic prong of the domestic industry requirement, one concerning licensing and patent exhaustion (the “Licensing Report”), and one concerning remedy (the “Remedy Report”).  S3G asserted that while it had no objection to Dr. Hausman testifying as an economic expert on the economic prong of the domestic industry requirement, it did take issue with the other two expert reports.


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By Eric Schweibenz
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May
09
On May 3, 2011, ALJ E. James Gildea issued the public version of Order No. 13 (dated April 26, 2011) in Certain Products Containing Interactive Program Guide and Parental Controls Technology (Inv. No. 337-TA-747).

By way of background, the Complainants in this investigation are Rovi Corporation, Rovi Guides, Inc., United Video Properties, Inc., and Index Systems, Inc.’s (collectively, “Rovi”) and the Respondents are Toshiba Corporation, Toshiba America, Inc., Toshiba America Consumer Products, L.L.C., and Toshiba America Information Systems, Inc.’s (collectively, “Toshiba”).


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By Eric Schweibenz
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May
06
On May 2, 2011, the International Trade Commission (the “Commission”) issued a notice in the Federal Register stating that the Commission is adopting a rule amendment whereby the Office of Unfair Import Investigations (the “Commission Investigative Staff” or “OUII”) will be reducing its role in Section 337 actions.  In particular, the notice states that, going forward, OUII will not participate in a subset of Section 337 cases and will only participate selectively in another subset of cases.  By way of background, see our June 17, 2010 post for more details on the origins and historical role of OUII.

The May 2 notice follows the issuance of the Commission’s Supplement to the Strategic Human Capital Plan 2009-2013 (the “Report”) on January 18, 2011, which called for a reduction in OUII’s role in view of budget constraints.  The Report states that, going forward, “OUII will give the highest priority to certain functions that draw upon its particular expertise while eliminating or reducing efforts devoted to other functions.”  To that end, OUII will continue to review draft complaints prior to filing and advise the Commission on whether to institute investigations.  However, after an investigation is instituted, the Report requests that “OUII place the highest priority on issues unique to section 337 and continue its efforts:  a) to ensure that the investigation is fully developed, b) to resolve procedural disputes without the need to resort to the presiding ALJ, and c) to facilitate settlement.”


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On May 3, 2011, Chief ALJ Paul J. Luckern issued the public version of Order No. 30 (dated March 18, 2011) in Certain Biometric Scanning Devices, Components Thereof, Associated Software, and Products Containing the Same (Investigation No. 337-TA-720).  In the Order, ALJ Luckern denied Complainant Cross Match Technologies, Inc.’s (“Cross Match”) motion to reconsider granting Respondents Suprema, Inc. and Mentalix, Inc.’s (“Respondents”) oral motion to strike certain testimony of Cross Match’s expert Dr. Roger McWilliams at an evidentiary hearing held on March 8, 2011.

According to the Order, Respondents and the Commission Investigative Staff opposed Cross Match’s motion on the grounds that certain testimony of Dr. McWilliams regarding the alleged infringement of a RealScan-F device should be stricken because such testimony was not previously disclosed in expert reports or deposition testimony.


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