On July 7, 2009, the International Trade Commission issued a notice determining not to review the May 8, 2009 Initial Determination (“ID”) issued by ALJ Theodore R. Essex in Certain Composite Wear Components and Products Containing Same (337-TA-644).

In the ID, ALJ Essex found respondents AIAE Engineering Limited and Vega Industries (collectively, “respondents”) in default under Commission Rule 210.16(a)(2) based on respondents failure to participate in discovery.  ALJ Essex further found that respondents’ conduct in the investigation warranted adverse inferences under Commission Rule 210.17, and on that basis found respondents in violation of Section 337.


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By Eric Schweibenz
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Jul
08
Further to our June 15 post, on July 7, 2009, Chief ALJ Paul J. Luckern issued Order No. 4 in Certain Energy Drink Products (337-TA-678).

According to the Order, ALJ Luckern set September 17, 2010 as the target date for completion of this investigation (which is 15 months after institution of the investigation).  ALJ Luckern further indicated that any final initial determination on violation should be filed no later than May 17, 2010.  In addition, ALJ Luckern noted that the evidentiary hearing in this matter will commence on February 16, 2010.


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By Eric Schweibenz
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Jul
07
On July 2, 2009, eInstruction Corporation (“eInstruction”) of Denton, Texas filed a complaint requesting that the ITC commence an investigation pursuant to section 337.

The complaint alleges that proposed respondent Qomo HiteVision, LLC (“Qomo”) of Wixom, Michigan unlawfully imports into the U.S. and sells within the U.S. after importation certain products using collaborative system technology and components thereof that infringe U.S. Patent No. 6,390,673 B2 (the “‘673 Patent”).


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By Eric Schweibenz
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Jul
07
On June 29, 2009, the Commission issued a Notice entitled “Issuance Of A General Exclusion Order; Termination Of The Investigation” in Certain Hair Irons and Packaging Thereof (Inv. No. 337-TA-637). 

By way of background, and as explained in our May 5 post, on March 14, 2008, the Commission instituted the investigation based upon a complaint filed by Farouk Systems, Inc. (“FSI”).  The respondents named in the Notice of Investigation were:  CHI Systems Singapore Pte. Ltd. of Singapore (“CHI Systems”); Princess Silk, LLC of Lake Forest, California (“Princess Silk”); Kamashi International of Hong Kong, China (“Kamashi”); Mount Rise, Ltd. of Dongguan, China (“Mount Rise”); and Dongguan Fumeikang Electrical Technology Co., Ltd. of Dongguan, China (“Dongguan Fumeikang”).  Dongguan Fumeikang and Princess Silk were terminated from the investigation on the basis of a consent order on May 21, 2008 and December 4, 2008, respectively.  On January 30, 2009, ALJ Carl C. Charneski granted FSI’s motion (Order No. 13) and found that Mount Rise, Kamashi, and CHI Systems were in default for failure to respond to the complaint and Notice of Investigation.


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There are no general ITC rules regarding the procedure for how an Administrative Law Judge (ALJ) is to construe claims and, therefore, claim construction is ALJ specific.  Historically, claim construction testimony and evidence in section 337 investigations has been presented during the evidentiary hearing along with other arguments, including, e.g., infringement and invalidity and, thus, there was no separate Markman hearing and no separate ruling.  In this respect, the parties to an investigation typically received the ALJ’s claim construction of disputed terms for the first time as part of the ALJ’s Initial Determination (ID).  More recently, certain ALJs have conducted Markman hearings prior to the evidentiary hearing.  In investigations where a Markman hearing is held, there is no requirement that the ALJ provide a separate claim construction ruling prior to the issuance of the ID.  Since the ALJ issues the ID after the evidentiary hearing (absent special circumstances), the parties are often forced to make arguments based on the competing claim constructions asserted by the other parties so as not to waive any arguments.  However, ALJ Essex recently issued an Order that construed disputed claim terms prior to an evidentiary hearing in Certain Semiconductor Chips Having Synchronous Dynamic Random Access Memory Controllers and Products Containing Same (Inv. No. 337-TA-661) (for more on this matter, see our June 29 post).

How a given ALJ handles claim construction can be discerned by examining each ALJ’s recently issued ground rules.  The Ground Rules of ALJs Rogers, Bullock, and Essex specifically address claim construction in a provision entitled “Markman Hearing on Claim Construction.”  This provision provides a general outline and structure of the procedural schedule surrounding a Markman hearing if the ALJ determines that a Markman hearing would be beneficial to the investigation.


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