By Eric Schweibenz
|
May
21
On May 19, 2009, Chief ALJ Paul J. Luckern issued an Order granting complainant Gertrude Neumark Rothschild’s motion to consolidate Certain Light Emitting Diode Chips, Laser Diode Chips and Products Containing Same (Inv. No. 337-TA-674) and Certain Short-Wavelength Light Emitting Diodes, Laser Diodes and Products Containing Same (Inv. No. 337-TA-640).

ALJ Luckern determined that “both the 640 Investigation and the 674 Investigation involve the same complainant (as well as the same administrative law judge and staff attorney), the same allegations of domestic industry, the same asserted patent (U.S. Patent No. 5,252,499), and the same asserted claims (independent claim 10 and dependent claims 12, 13 and 16).”  Thus, in view of the overlap in factual and legal issues between the two investigations, ALJ Luckern found that the most efficient course was to consolidate the two investigations.  ALJ Luckern also determined that consolidation “would (i) conserve the parties’ and the Commission’s resources, (ii) avoid the need for two hearings, and (iii) avoid potentially difficult procedural and legal complications that could arise by having to determine whether and to what extent any rulings in the 640 Investigation could affect issues in the 674 Investigation if the investigations proceed on separate, independent tracks.”


Share

Read More

By Eric Schweibenz
|
May
20
On May 20, 2009, UNeMed Corporation (“UNeMed”) of Omaha, Nebraska filed a complaint requesting that the ITC commence an investigation pursuant to section 337.

The complaint alleges that the following proposed respondents unlawfully import into the U.S. and sell within the U.S. after importation certain products falsely advertised as containing creatine ethyl ester:

  • Bodyonics, Ltd. of Hicksville, New York;

  • Engineered Sports Technology, Inc. of Oviedo, Florida;

  • Proviant Technologies, Inc. of Champaign, Illinois;

  • Controlled Labs of New Rochelle, New York;

  • NRG-X Labs. of Bentonville, Arkansas; and

  • San Corporation of Oxnard, California.


According to the complaint, UNeMed is the technology transfer entity of the University of Nebraska Medical Center (“UNMC”), and the exclusive licensee of patents filed and issued to the Board of Regents of the University of Nebraska on behalf of UNMC employees.  UNeMed’s portfolio includes U.S. Patent No. 6,897,334 and other U.S. patent applications (“UNMC IP”) relating to creatine ethyl ester used as a nutritional supplement and an anti-inflammatory.


Share

Read More

By Barry Herman
|
May
19
On May 19, 2009, the Federal Circuit issued its opinion in Erbe Elektromedizin GMBH v. ITC, No. 2008-1358.  Judge Dyk, sitting on a panel with Chief Judge Michel and Judge Rader, affirmed the ITC’s claim construction and findings of no infringement.

By way of background, the ITC instituted the underlying investigation (Certain Endoscopic Probes for Use in Argon Plasma Coagulation Sys., 337-TA-569) based on Erbe Elektromedizin GmbH and ERBE USA, Inc.’s (collectively, “Erbe”) April 10, 2006 complaint against Canady Technology, LLC and Canady Technolology Germany GmbH (collectively, “Canady”), alleging violation of Section 337 by Canady’s importation and sale of certain endoscopic probes for use in argon plasma coagulation (“APC”) systems that coagulate bleeding tissue during electrosurgery.  As we explained in our March 30 post, oral arguments in this matter were heard by the Federal Circuit on April 3, 2009.


Share

Read More

By Eric Schweibenz
|
May
18
On May 15, 2009, Red Bull GmbH of Austria and Red Bull North America, Inc. of Santa Monica, California (collectively, “Red Bull”) filed a complaint requesting that the ITC commence an investigation pursuant to section 337.

According to the complaint, the following proposed respondents unlawfully import into the U.S., sell for importation, and sell and distribute within the U.S after importation gray market energy drink products which are materially different from Red Bull’s energy drink:

  • Chicago Import Inc. of Chicago, Illinois;

  • Lamont Dist., Inc. a/k/a Lamont Distributors Inc. of Brooklyn, New York;

  • India Imports, Inc., a/k/a International Wholesale Club of Metairie, Louisiana;

  • Washington Food and Supply of D.C., Inc. a/k/a Washington Cash & Carry;

  • Vending Plus, Inc. of Glen Burnie, Maryland; and

  • Baltimore Beverage Co. of Glen Burnie, Maryland.


Red Bull asserts that these proposed respondents have violated Section 337 by infringing Red Bull U.S. Trademark Reg. Nos. 3,092,197; 2,946,045; 2,994,429; and 3,479,607, as well as Red Bull Copyright Reg. No. VA0001410959.  Specifically, Red Bull alleges in the complaint that the proposed respondents’ gray market energy drink products may have “different languages on the cans, omitted or different nutritional information and other unfamiliar wording on the cans, shoddy and inferior overlabeling on the cans, different local distributor contact information (e.g., a Dubai address rather than the U.S. California address), and a different overall image than U.S. Red Bull Energy Drink products.”  Red Bull also charges that those handling the proposed respondents’ gray market energy drink products outside of the authorized distribution channels are not subject to quality control standards required for Red Bull energy drink products.  Moreover, according to the complaint, the distribution of the proposed respondents’ energy drink products “causes or is likely to cause purchaser or consumer confusion, mistake, and/or deception to the detriment of Red Bull, as well as to the detriment of consumers and purchasers in the United States.”


Share

Read More

By Eric Schweibenz
|
May
18
On May 14, 2009, ALJ Carl C. Charneski issued the public version of Order No. 35 (dated May 6, 2009) in Certain Variable Speed Wind Turbines and Components Thereof (Inv. No. 337-TA-641).  In the Order, ALJ Charneski denied complainant General Electric Co.’s (“GE”) motion in limine to prevent respondents Mitsubishi Heavy Industries, Ltd., Mitsubishi Heavy Industries America, Inc., and Mitsubishi Power Systems Americas, Inc.’s (collectively, “MHI”) expert, Dr. Thomas G. Habetler (“MHI’s expert”), from testifying as to invalidity positions presented initially in his “Contention Rebuttal Report.”

GE’s motion in limine sought to exclude new obviousness, written description, and enablement arguments that MHI’s expert presented for the first time in his February 3, 2009 Contention Rebuttal Report.


Share

Read More