By Barry Herman
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Jul
02
On July 2, 2009, Chief ALJ Paul J. Luckern issued the public version of Order No. 37 (dated April 23, 2009) in Certain Video Games and Related Three-Dimensional Pointing Devices (337-TA-658).  In the Order, ALJ Luckern required Complainant Hillcrest Laboratories, Inc. (“Hillcrest”), Respondents Nintendo Co., Ltd. and Nintendo of America, Inc. (collectively “Nintendo”), and the Commission Investigative Staff (“Staff”) to answer questions and provide submissions “as an educational vehicle” in lieu of a tutorial on the subject matter of the investigation.

According to the Order, the ALJ required Hillcrest to answer 50 questions about the disclosure and claims of the patents-in-suit.  Specifically, the ALJ’s questions related to, among other things, the prosecution history of the patents-in-suit, an equation referenced in the patents-in-suit, the accuracy of statements in the specification of the patents-in-suit, the disputed claim terms and their interpretation, the evidence Hillcrest would offer at the evidentiary hearing in support of its positions, the understanding of a person of ordinary skill in the art with respect to certain issues, and various assertions made in Nintendo’s pre-hearing statement.


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By Mark Tison
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Jul
02
On July 10, 2009, the Federal Circuit is scheduled to hear oral argument in Crocs, Inc. v. ITC (2008-1596).

Crocs, Inc. (“Crocs”) filed a complaint with the ITC on March 31, 2006, and an amended complaint on April 27, 2006, against Collective Licensing International, LLC et al. alleging violation of Section 337 by the respondent’s importation and sale of certain foam footwear.  After the Commission instituted an investigation (337-TA-567) and held an evidentiary hearing, ALJ Charles E. Bullock issued an initial determination (“ID”) on April 11, 2008, in which he concluded that there was no violation of section 337 because: (1) U.S. Patent No. D517,789 (“the ‘789 patent”) was not infringed by the respondents’ shoes; (2) Crocs’ shoes did not satisfy the technical prong of the domestic industry requirement relating to the ‘789 patent; and (3) U.S. Patent No. 6,993,858 (“the ‘858 patent”) was invalid due to obviousness as proven by clear and convincing evidence.  Complainant Crocs, respondent Collective Licensing International, LLC, Effervescent Inc. and Holey Soles Holding Ltd. (collectively “CLI”), and the Commission investigative attorney (“IA”) filed petitions for review of the ID.  Respondents Gen-X Sports, Inc. (“Gen-X Sports”) and Double Diamond Distribution Ltd (“Double Diamond) subsequently filed joinders to CLI’s petition.  The Commission granted the petitions in part and upheld the ID on July 25, 2008 with modifications and clarifications set forth in a separately issued Opinion.  Crocs appealed the Commission’s decision to the Federal Circuit.


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By Eric Schweibenz
|
Jul
01
On June 30, 2009, ALJ Charles E. Bullock issued Order No. 9 in Certain Flash Memory Chips and Products Containing The Same (Inv. No. 337-TA-664).

According to the Order, complainants Spansion, Inc. and Spansion LLC filed a motion to lift the stay and establish a new schedule for the investigation “due to the bankruptcy court’s disapproval of the proposed settlement agreement.”  In view of the parties’ submissions regarding proposed procedural schedules, ALJ Bullock extended the target date in the investigation by seven months, or until January 18, 2011.  In addition, the revised procedural schedule issued by ALJ Bullock includes a schedule for the exchange of claim construction briefs and a claim construction hearing.  Further, ALJ Bullock provides in the procedural schedule that he will “make every attempt to issue the claim construction order by [two months before the evidentiary hearing].”


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By Gregory Redmann
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Jun
30
Respondents involved in patent infringement investigations at the ITC typically raise affirmative defenses in response to a Section 337 complaint.  Similar to district court practice, respondents may also assert counterclaims.  In Section 337 actions, however, counterclaims are automatically removed to a U.S. District Court of appropriate venue so as not to delay the ITC investigation.

By way of background, a counterclaim is a claim that “(1) arises out of the transaction of occurrence that is the subject matter of the opposing party’s claim and (2) does not require adding another party over whom the court cannot acquire jurisdiction.”  Fed. R. Civ. P. 13.


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By Eric Schweibenz
|
Jun
29
On June 22, 2009, ALJ Theodore R. Essex issued Order No. 12, construing the disputed terms of the asserted claims of the patents-in-suit in Certain Semiconductor Chips Having Synchronous Dynamic Random Access Memory Controllers and Products Containing Same (Inv. No. 337-TA-661).

In this investigation, Complainant Rambus, Inc. (“Rambus”) alleges that respondents NVIDIA Corp.; Asustek Computer Inc.; ASUS Computer International, Inc.; BFG Technologies, Inc.; Biostar Microtech (U.S.A.) Corp.; Biostar Microtech International Corp.; Diablotek Inc.; EVGA Corp.; G.B.T. Inc.; Giga-byte Technology Co., Ltd.; Hewlett-Packard Co.; MSI Computer Corp.; Micro-star International Co., Ltd.; Palit Multimedia Inc.; Palit Microsystems Ltd.; Pine Technology Holdings, Ltd.; and Sparkle Computer Co., Ltd. (“Respondents”) infringe certain claims of U.S. Patent Nos., 7,177,998; 7,210,016; 6,470,405; 6,591,353; 7,287,109; 7,287,119; 7,330,952; 7,330,953; and 7,360,050.  The patents-in-suit are generally directed to memory controllers for controlling data transfers to and from dynamic random access memory in computer systems.  A Markman hearing was held on March 24, 2009.


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