By Eric Schweibenz
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Jul
29
On July 27, 2009, Chief ALJ Paul J. Luckern issued the heavily redacted public version of Order No. 42 (dated March 10, 2009) granting Complainants InterDigital Communications, LLC and InterDigital Technology Corp.’s (“InterDigital”) motion for summary determination that InterDigital’s U.S. licensing activities satisfy the domestic industry requirements of 19 U.S.C. § 1337(a)(3)(C) in Certain 3G Mobile Handsets and Components Thereof (Inv. No. 337-TA-613).

Respondents Nokia Inc. and Nokia Corporation (“Nokia”) opposed InterDigital’s summary determination motion on the basis that (1) the technical prong requires the existence of an article protected by the asserted patents; (2) InterDigital failed to demonstrate a nexus between the asserted patents and its licensing program; (3) a broad licensing program cannot satisfy the nexus requirement; (4) InterDigital failed to show that the asserted patents were important to its licensing program; (5) genuine issues of material fact existed as to whether InterDigital’s investments are substantial as required by section 337; and (6) InterDigital’s purported investment total includes activities beyond the asserted patents, such as licensing of other technology and activities prior to the issuance of the asserted patents.  According to the Order, the Commission Investigative Staff did not oppose InterDigital’s summary determination motion in view of ALJ Luckern’s Order No. 20 in Certain 3G Wideband Code Division Multiple Access (WCDMA) Handsets (Inv. No. 337-TA-601), which was adopted by the Commission, granting a motion for summary determination that a domestic industry can be established based solely on licensing activities. 


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By Eric Schweibenz
|
Jul
29
On July 28, 2009, the International Trade Commission issued a Notice denying Respondents Vizio, Inc., AmTran Technology Co., Ltd., TPV Technology, Ltd., TPV International (USA), Inc., Top Victory Electronics (Taiwan) Co., Ltd., and Envision Peripherals, Inc.’s (collectively, “Respondents”) joint motion to stay enforcement of a limited exclusion order (“LEO”) and cease and desist orders (“C&D Orders”) in Certain Digital Television Products and Certain Products Containing Same and Methods of Using Same (Inv. No. 337-TA-617).

By way of background, on April 10, 2009, the Commission terminated this investigation with a finding of violation of section 337 by reason of infringement of claims 1, 5, and 23 of U.S. Patent No. 6,115,074.  See our April 14 and May 5 posts for more information.  In connection with its Final Determination, the Commission issued an LEO against the Respondents, and C&D Orders directed to Vizio, TPV USA, and Envision, among others.


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By Tom Fisher
|
Jul
29
On July 28, 2009, Chief ALJ Paul J. Luckern issued Order No. 8 in Certain Energy Drink Products (Inv. No. 337-TA-678).  In the Order, ALJ Luckern granted complainants Red Bull GmbH and Red Bull North America, Inc.’s (collectively, “Red Bull”)  motion to modify the protective order (Order No. 2) to address the inadvertent disclosure of documents and things subject to the attorney-client privilege or work product immunity by adding a claw-back provision.  Respondents India Imports Inc., Washington Food and Supply of D.C., Inc., and Vending Plus, Inc. (collectively, “Respondents”) opposed the motion, and the Commission Investigative Staff did not take a position on the motion.

In the Order, ALJ Luckern acknowledged that he has included similar claw-back provisions in the past, but never where there was opposition to such provision.  As stated in the Order, Respondents argued that the inclusion of the proposed claw-back provision would invite discovery abuses and that the proposed claw-back provision is “a rule that confers the greatest benefits on the party with the largest number of documents to produce, viz. complainants.”  ALJ Luckern noted that the proposed claw-back provision is standard in protective orders in both federal district court cases and section 337 investigations, and further noted that Red Bull had represented that they have reviewed their documents for privilege prior to producing them.


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By Tom Fisher
|
Jul
28
On July 27, 2009, BTG International Inc. (“BTG”) of West Conshohocken, Pennsylvania filed a complaint requesting that the ITC commence an investigation pursuant to section 337.

The complaint alleges that the following proposed respondents (collectively, “Respondents”) unlawfully import into the U.S., sell for importation, and sell within the U.S. after importation certain MLC flash memory chips and products containing the same, which allegedly infringe BTG’s U.S. Patent Nos. 5,394,362, 5,764,571, 5,872,735, 6,104,640, and 6,118,692:

  • Samsung Electronics Co., Ltd. of South Korea

  • Samsung Electronics America, Inc. of Ridgefield Park, New Jersey

  • Samsung Semiconductor, Inc. of San Jose, California

  • Samsung Telecommunications America, LLC of Richardson, Texas

  • Apple of Cupertino, California

  • ASUStek Computer Inc. of Taiwan

  • ASUS Computer International Inc. of Fremont, California

  • Dell of Round Rock, Texas

  • Lenovo of Hong Kong

  • Lenovo (United States) Inc. of Morrisville, North Carolina

  • PNY of Parsippany, New Jersey

  • Research in Motion, Ltd. of Canada

  • Research in Motion Corp. of Irving, Texas

  • Sony Corp. of Japan

  • Sony Electronics, Inc. of San Diego, California

  • Transcend of Taiwan


According to the complaint, the asserted patents relate to non-volatile programmable flash memory chips that are used in various consumer electronics devices.  In particular, the inventions “relate to methods and apparatuses for programming and reading Flash memory cells that store more than a single bit of information per cell.”


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