By Tom Fisher
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May
05
On April 21, 2009, Chief ALJ Paul J. Luckern issued the public version of Order No. 18 (dated March 23, 2009) in Certain Video Game Machines and Related Three-Dimensional Pointing Devices (337-TA-658) denying respondent Nintendo Co., Ltd.’s  (“Nintendo”) motion to preclude complainant Hillcrest Laboratories Inc. (“Hillcrest”) from introducing evidence on the subject of infringement by Nintendo’s Nunchuk and Wii MotionPlus accessories and that the ALJ grant partial summary determination of non-infringement with respect to these two accessories.  Hillcrest and the Commission Investigative Staff  opposed the motion.

Nintendo argued that it had repeatedly inquired as to the scope of Hillcrest’s allegations of infringement, and that Hillcrest refused to answer.  Instead, according to the order, Nintendo argued that Hillcrest answered an interrogatory on the issue by “simply pointing to its expert reports,” which were served on the same day as the interrogatory answer, and that neither Nintendo nor the expert reports discussed how the Nunchuk and Wii MotionPlus accessories infringe the patents.  Hillcrest and the Staff responded that it was premature for the ALJ to preclude expert testimony regarding the Nunchuk and Wii MotionPlus accessories, citing Ground Rule 4(viii), which states that “[t]he party submitting said expert report shall have the opportunity to supplement at appropriate intervals the information contained therein if the party learns that in some material respect the information disclosed therein is incomplete or incorrect.”


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By Barry Herman
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May
05
On April 23, 2009, ALJ Charles E. Bullock issued Order No. 4 in Certain Digital Cameras (337-TA-671) denying respondent Eastman Kodak Company’s (“Kodak”) motion for a two month extension of the target date, a request to extend the hearing date, and a request for a Markman hearing.  Complainants Samsung Electronics Company, Ltd. and Samsung Electronics America, Inc. (“Samsung”) and the Commission Investigative Staff opposed the motion.

Kodak sought the two month extension to allow time for a Markman hearing and to conduct foreign discovery as well as resolve a scheduling conflict with Investigation No. 337-TA-663 which, according to Kodak, involves the same parties and lead counsel.  Samsung and the Staff responded that, due to the simplicity of the technology, a Markman hearing is unnecessary and foreign discovery is routine in Section 337 investigations.  They also argued that the conflict with Investigation No. 337-TA-663 could resolve itself in view of the pending motion in that investigation to consolidate it with Investigation No. 337-TA-672, which would result in a rescheduling of that hearing.


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By Barry Herman
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May
05
On April 30, 2009, Chief ALJ Paul J. Luckern issued the public version of Order No. 26 (dated March 26, 2009) in Certain Video Games and Related Three-Dimensional Pointing Devices (337-TA-658).  In the Order, ALJ Luckern denied complainant Hillcrest Laboratories, Inc.’s (“Hillcrest”) motion for summary determination that Hillcrest’s licensing activities in the United States satisfy the domestic industry (economic prong) requirement of 19 U.S.C.§ 1337(a)(3)(C).

Section 337(a)(3)(C) provides for a domestic industry based on “substantial investment” in certain activities, including licensing of a patent.  Hillcrest sought summary determination that its licensing activities satisfied the domestic industry requirement because of its investments in negotiating licenses.  Hillcrest relied on the assertions of one of its own officers in an attempt to prove its contentions.


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By Eric Schweibenz
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May
04
On May 1, 2009, ALJ Robert K. Rogers, Jr. issued Order No. 29 in Certain Semiconductor Integrated Circuits and Products Containing Same (337-TA-665).  In the Order, ALJ Rogers denied respondents LSI Corporation, Seagate Technology, Seagate Technology (US) Holdings Inc., Seagate Technology LLC, Seagate Memory Products (US) Corporation, Seagate Technologies International (Singapore), and Seagate (US) LLC’s (collectively “Respondents”) motion to strike complainant Qimonda AG’s (“Qimonda”) eight motions to compel. 

According to the Order, Respondents argued that Qimonda did not satisfy the meet and confer requirements of Ground Rule 3.2, including the provision requiring that the moving party attempt to contact and resolve the disputed matter with the other parties at least two business days prior to filing the motion.  According to Respondents, Qimonda sent an email at 10:19 p.m. on the night of April 21, 2009 stating that it intended to file motions to compel on various topics.  Qimonda subsequently filed the subject motions to compel on April 23.  Thus, Respondents argued Qimonda (1) failed to provide Respondents with the two day notice required by Ground Rule 3.2; (2) unreasonably delayed bringing the motions to compel since the issues that form the bases for the motions were disputed for weeks; and (3) sought to impede Respondents’ trial preparation.  In response, Qimonda argued that it satisfied Ground Rule 3.2 for each of the eight motions to compel and  Respondents violated Ground Rule 3.2 in filing the instant motion to strike by failing to notify Qimonda of Respondents’ intent to file such motion. The Commission Investigative Staff filed a response in support of Respondents’ motion to strike.


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By Barry Herman
|
May
01
On April 30, 2009, the Federal Circuit issued a per curiam opinion in Amgen, Inc. v. ITC, No. 2007-1014.  Sitting en banc, Judges Newman, Lourie and Linn revised a portion of the March 19, 2008 opinion issued in this case.

By way of background, Amgen holds several U.S. patents relating to recombinant human erythropoietin and derivatives (“EPO”) and processes for making EPO.  Roche produces EPO in Europe and was seeking FDA approval for its own EPO drug in the U.S.  As part of its effort to generate data for its regulatory submissions to the FDA, Roche began importing EPO into the U.S.  Roche continued importing EPO after its FDA application was complete, although not for sale or contract to sell in the U.S.  Amgen initiated a Section 337 action, asserting that Roche’s imported EPO and the process by which it is produced in Europe are covered by one or more claims of six of Amgen’s U.S. patents.


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