By Tom Fisher
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Jul
21
On July 20, 2009, ALJ Theodore R. Essex issued the public version of a Recommended Determination (“RD”) that the International Trade Commission grant Complainant Magotteaux International S/A and Magotteaux, Inc. (collectively “Magotteaux”) attorney’s fees incurred in responding to the Commission Investigative Staff’s (“Staff”) Motion for Initial Determination finding Respondents AIA Engineering Limited and Vega Industries (collectively “Respondents”) in Default and in preparing Magotteaux’s own Motion for Default and Adverse Inferences in Certain Composite Wear Components and Products Containing Same (Inv. No. 337-TA-644).

As indicated in our July 8 post, ALJ Essex issued an Initial Determination (“ID”) on May 8, 2009 finding Respondents in default under Commission Rule 210.16(a)(2) based on failure to participate in discovery, that Respondents’ conduct in the investigation warranted adverse inferences under Commission Rule 210.17, and that Respondents were in violation of Section 337 on that basis.  On July 7, 2009, the Commission issued a notice determining not to review the ID, and requesting written submissions regarding the form of remedy, if any, that should be ordered.


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By Tom Fisher
|
Jul
21
Further to our June 15 post, on July 16, 2009, the International Trade Commission issued the public version of its Opinion in Certain Silicon Microphone Packages and Products Containing Same (Inv. No. 337-TA-629).  In the Opinion, the Commission affirmed ALJ Robert K. Rogers, Jr.’s determination that Respondent MEMS Technology Berhad (“MemsTech”) had violated Section 337.  Specifically, the Commission affirmed with certain modifications ALJ Rogers’ findings that Complainant Knowles Electronics, LLC’s (“Knowles”) U.S. Patent Nos. 6,781,231 (the “‘231 patent”) and 7,242,089 (the “‘089 patent”) are valid and that MemsTech’s silicon microphone packages infringe certain claims of those patents.  The Commission also issued a limited exclusion order against MemsTech.  Please note that Oblon Spivak represents MemsTech in this matter.

With respect to infringement, the Commission affirmed with certain modifications ALJ Rogers’s finding that MemsTech’s silicon mircrophone packages infringe the asserted claims of the ‘231 and ‘089 patents.  With respect to the modifications, the Commission found that in making his infringement determination, ALJ Rogers had improperly relied on exhibits that were not admitted into evidence.  The Commission struck these improper references, but affirmed ALJ Rogers’ infringement determination because, according to the Opinion, there was alternative support for infringement in the record.


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By Tom Fisher
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Jul
21
Further to our July 7 post, on July 20, 2009 the International Trade Commission issued the public version of its Opinion issuing a General Exclusion Order (“GEO”) in Certain Hair Irons and Packaging Thereof (Inv. No. 337-TA-637).  In this investigation, Complainant Farouk Systems, Inc. (“FSI”) accused several respondents of infringing FSI’s CHI® trademark.  The respondents either signed consent orders or were found in default.

In the Opinion, the Commission cited to the Federal Circuit’s Kyocera decision and stated that parties must meet the “heightened requirements of Section 337(d)(2)(A) or (d)(2)(B)” before the ITC has the authority to issue a GEO.  The Commission agreed with ALJ Charneski’s findings that there has been a pattern of violation of FSI’s CHI ® trademark and that it is difficult to identify the source of infringing goods.  The Commission therefore agreed that the statutory requirements of section 337(d)(2)(B) had been met, and that a GEO was appropriate.  In particular, the Commission found:  (1) FSI has initiated 21 lawsuits in district courts, which have failed to stop the infringement; (2) FSI has monitored thousands of offers for sale of infringing hair irons and attempted to shut down websites or online offers originating in the United States; (3) it is difficult to identify the source of the infringing products because companies infringing FSI’s trademark are deliberately misrepresenting their products as those of FSI; (4) infringers are mismarking the country of origin to increase confusion; and (5) the products are distributed over the Internet, which lends itself to anonymity.


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By Tom Fisher
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Jul
21
On July 20, 2009, the International Trade Commission issued a Notice determining not to review ALJ Carl C. Charneski’s June 26, 2009 Initial Determination (“ID”) in Certain Semiconductor Integration Circuits Using Tungsten Metallization and Products Containing Same (Inv. No. 337-TA-648) granting respondent STMicroelectronics N.V.’s (“ST”) motion for summary determination of no violation of section 337.

The Commission instituted the 648 investigation on May 21, 2008 based on a complaint filed by LSI Corp. and Agere Systems Inc. for infringement of U.S. Patent No. 5,227,335.  The complaint named numerous respondents, including ST.


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By Tom Fisher
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Jul
21
On July 20, 2009, ALJ Theodore R. Essex issued Order No. 4 in Certain Course Management System Software Products (Inv. No. 337-TA-677) setting the target date for completing the investigation.

According to the Order, ALJ Essex set October 12, 2010 as the target date (which is 16 months after institution of the investigation).  ALJ Essex further indicated that any final initial determination on violation should be filed no later than June 9, 2010.  In addition, ALJ Essex noted that the evidentiary hearing in this matter will commence on February 22, 2010.  In the Order, ALJ Essex also observed that these target and hearing dates might be extended if he grants a currently pending motion to stay the investigation in light of a reexamination proceeding at the U.S. Patent and Trademark Office, and an appellate proceeding before the U.S. Court of Appeals for the Federal Circuit.


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