By Barry Herman
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May
06
On April 30, 2009, Administrative Law Judge E. James Gildea issued Order No. 20 setting technology and Markman tutorials in Certain Coaxial Cable Connectors and Components Thereof and Products Containing the Same (Inv. No. 337-TA-650).

According to the Order, ALJ Gildea determined that “brief technology tutorials will be useful in setting the stage for the hearing.”  ALJ Gildea permitted the private parties 30 minutes per side and indicated that      “[l]egal argument during said presentations will not be permitted.”


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By Eric Schweibenz
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May
06
On May 4, 2009, ALJ Carl C. Charneski issued Order No. 34 in Certain Variable Speed Wind Turbines And Components Thereof (337-TA-641).  In the Order, ALJ Charneski denied General Electric Company’s (“GE”) motion in limine to prohibit patent law expert Lawrence J. Goffney from presenting testimony in violation of Ground Rules 5(A) and 5(B) on behalf of Mitsubishi Heavy Industries, Ltd., Mitsubishi Heavy Industries America, Inc., and Mitsubishi Power Systems Americas, Inc. (collectively, “MHI”).

According to the Order, GE argued that Goffney’s opinions, as set forth in his expert report, violate Ground Rule 5(A) (because such opinions contain legal arguments), and Ground Rule 5(B) (because such opinions go beyond the procedures of the U.S. Patent and Trademark Office (“PTO”)).  In response, MHI agreed to strike those portions of Goffney’s report which it believed GE found objectionable.   MHI further agreed to limit Goffney’s testimony to matters of (1) general considerations pertaining to patents (e.g., role and structure of the PTO and training and skill of PTO examiners), (2) PTO practices and procedures relating to the duty of candor of good faith in dealing with the PTO, (3) the prosecution histories of the applications for the patents at issue and (4) matters raised on cross-examination, matters necessary to rebut matters testified to by GE’s experts, and matters otherwise raised at the hearing by GE’s counsel or the ALJ.


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By Tom Fisher
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May
06
On April 30, 2009, Chief ALJ Paul J. Luckern issued the public version of Order No. 33 (dated April 9, 2009) in Certain Video Game Machines and Related Three-Dimensional Pointing Devices (337-TA-658).  In the Order, ALJ Luckern denied Respondents Nintendo Co., Ltd. and Nintendo of America, Inc.’s (“Nintendo”) Motion for Summary Determination of Invalidity of U.S. Patent No. 7,139,983 (“the ‘983 patent”) Under 35 U.S.C. §§ 102 and 103.

According to the Order, the ‘983 patent is directed to a method for providing a user interface on a television comprising the steps of displaying media objects, receiving inputs, zooming, and displaying selections.  In its motion, Nintendo argued that under Hillcrest’s proposed claim construction, certain claims of the ‘983 patent are invalid under §§ 102 and 103, in light of (1) U.S. Patent No. 6,577,350 (“the ‘350 patent”); (2) a Pad++ system developed at New York University and the University of New Mexico (“Pad++”); and (3) Nintendo’s N64 Extreme-G video game (“Extreme-G”).


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By Barry Herman
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May
05
Further to our April 14 post, on April 23, 2009, the Commission issued the public version of its confidential April 10 Opinion affirming ALJ Charneski’s finding that Respondents Vizio, Inc., AmTran Technology Co., Ltd., Syntax-Brillian Corp., Taiwan Kolin Co., Ltd., Proview International Holdings, Ltd., Proview Technology (Shenzhen) Co., Ltd., Proview Technology, Ltd., TPV Technology, Ltd., TPV International, Top Victory Electronics Co., Ltd., and Envision Peripherals, Inc. (“Respondents”) violated section 337 as a result of inducing infringement of U.S. Patent No. 6,115,074 held by Funai Electric Co., Ltd. of Japan and Funai Corp. of Rutherford, NJ (“Funai”).  The Commission reversed ALJ Charneski’s finding, however, that certain respondents directly infringed the ‘074 patent.

The ‘074 patent is directed to a method and apparatus for decoding a datastream of MPEG compatible packetized information to provided decoded program data for use in changing the channel on digital televisions (“DTVs”).  According to the Opinion, the Commission found that substantial evidence does not support the ALJ’s inference that the TPV and Proview respondents directly infringe claim 23 of the ‘074 patent by testing their DTVs in the United States.  With respect to inducement, the Commission rejected Respondents’ argument that they did not possess the requisite intent since they did not make the semiconductor chipsets that perform the infringing method.  Instead, the Commission determined that there was inducement since Respondents select and combine the chipsets with other components in designing their DTVs, which they market for the specific purpose of receiving ATSC-compliant broadcast signals.  The Commission also rejected Respondents’ argument that their introduction of “work-around” products demonstrated a good faith effort to avoid infringement because Respondents relied on a claim construction of “suitable for use” that is contrary to the well-known and ordinary meaning of the disputed language.  The Commission then made additional findings supporting the ALJ’s conclusion that Respondents knew or should have known that their acts would cause their customers to infringe, including:  (1) Prior to filing its complaint with the Commission, Funai contacted each of the Respondents to offer licenses; (2) Respondents were aware that the ‘074 patent had been designated as essential to practice the ATSC standard since before the investigation; and (3) Respondents continued to sell the older “legacy” DTVs after the investigation began.


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By Barry Herman
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May
05
On April 29, 2009, ALJ E. James Gildea issued the public version of Order No. 7 (dated April 17, 2009) denying a motion by Complainants 02 Micro International Ltd. and 02 Micro Inc. to disqualify counsel for Respondents LG Electronics Inc., LG Electronics USA, Inc., LG Display Co., Ltd., and LG Display America, Inc. in Certain Cold Cathode Fluorescent Lamp (“CCFL”) Inverter Circuits and Products Containing the Same (337-TA-666).

O2 Micro argued that Morgan Lewis & Bockius LLP (“MLB”), the firm representing LG, had two conflicts of interest which should prevent it from representing LG in the investigation: (1) prior to joining LG’s law firm, MLB attorney Daniel Johnson had been lead counsel for O2 Micro in a lawsuit against Monolithic Power Systems (the “MPS Litigation”) involving a patent in the same family as the patent at issue in the Investigation, and (2) MLB represented O2 Micro in the MPS Litigation after Mr. Johnson joined the firm.  O2 Micro argued that MLB’s representation of LG violated loyalties and ethical obligations owed to O2 Micro and that confidences and secrets O2 Micro might have conveyed to Mr. Johnson and MLB during the MPS Litigation might give LG an unfair advantage.


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