By Eric Schweibenz
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Oct
26
On October 23, 2009, the International Trade Commission issued a notice stating that it has determined that there has been no violation of Section 337 in Certain Flash Memory Controllers, Drives, Memory Cards, and Media Players and Products Containing Same (Inv. No. 337-TA-619).

By way of background, and as explained in our April 14 and August 25 posts, this investigation was instituted on December 12, 2007, based on the complaint of SanDisk Corp. (“SanDisk”) of Milpitas, California.  According to the notice, over 50 respondents were named in the complaint, and approximately half of the named respondents either settled out of the investigation or defaulted.  On August 24, 2009, the International Trade Commission issued a notice determining to review in part the April 10 final Initial Determination issued by ALJ Charles E. Bullock.


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By Eric Schweibenz
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Oct
23
On October 23, 2009, the U.S. International Trade Commission issued a press release announcing that it voted to institute an investigation of Certain Inkjet Ink Supplies and Components Thereof (Inv. No. 337-TA-691).

According to the Notice of Investigation, the investigation is based on a September 23, 2009 complaint and October 7, 2009 letter supplementing the complaint filed by Hewlett-Packard Co. (“HP”) of Palo Alto, California.  The complaint alleges violation of Section 337 in the importation into the U.S., the sale for importation, and the sale within the U.S. after importation of certain inkjet ink supplies and components thereof, which allegedly infringe HP’s U.S. Patent Nos. 6,959,985; 7,104,630; 6,089,687; and 6,264,301.  See our September 24 post for more details.


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In Section 337 investigations, the party that prevails before the Commission is not entitled to appeal to the U.S. Court of Appeals for the Federal Circuit the Commission’s final determination, and is not automatically a party to an appeal brought by the party that lost before the Commission.  However, the prevailing party is entitled to intervene if the losing party appeals the Commission’s determination.

Under Section 337, an appeal of an adverse Commission determination must be made “in accordance with chapter 7 of title 5.”  19 U.S.C.  § 1337(c).  Chapter 7 of title 5, in turn, only provides for appellate actions “against the United States, the [federal] agency by its official title, or the appropriate officer.”  5 U.S.C. § 703.  Accordingly, appeals of adverse determinations at the ITC in connection with Section 337 actions cannot be brought against the other party to the investigation directly; rather, they must be brought against the ITC.


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By Eric Schweibenz
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Oct
22
On October 21, 2009, ALJ E. James Gildea issued the public version of Order No. 31 (dated September 24, 2009) in Certain Cold Cathode Fluorescent Lamp (“CCFL”) Inverter Circuits and Products Containing the Same (Inv. No. 337-TA-666).  In the Order, ALJ Gildea granted in part Complainants O2 Micro International Ltd. and O2 Micro Inc.’s (collectively, “O2 Micro”) motion for summary determination that the activities of Respondent ASUSTeK Computer Inc. (“ASUSTeK”) satisfy the importation requirement of Section 337 and constitute one or more “territorial acts” proscribed under 35 U.S.C. § 271(a).

In the motion, O2 Micro alleged that ASUSTeK sells its accused products for importation into the United States, imports its accused products into the United States, and sells its accused products within the United States after importation.  Further, O2 Micro contended that the latter two activities, i.e., importing accused products into and selling accused products in the United States, are “predicate elements of infringement” under 35 U.S.C. § 271(a).


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By Eric Schweibenz
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Oct
22
On October 21, 2009, ALJ Carl C. Charneski issued the public version (dated August 21, 2009) of the Recommended Determination on Remedy and Bonding (“RD”) in Certain Variable Speed Wind Turbines and Components Thereof (Inv. No. 337-TA-641).  In the RD, ALJ Charneski recommended (1) that a limited exclusion order issue; (2) a cease and desist order not issue as to any respondent; and (3) if the Commission issues an exclusion order, the Presidential review period bond should be set at 100% of the entered value of any covered product.

By way of background, the Complainant in this investigation is General Electric Co. (“GE”) and the Respondents are Mitsubishi Heavy Industries, Ltd. (“MHI”), Mitsubishi Heavy Industries America, Inc. (“MHIA”), and Mitsubishi Power System, Inc. (“MPSA”) (collectively, “Mitsubishi”).  On August 7, 2009, ALJ Charneski issued the initial determination in this investigation, finding that a violation of Section 337 had occurred in the importation into the U.S., the sale for importation, and the sale within the U.S. after importation of certain variable speed wind turbines and components thereof.  See our August 10 and October 8 posts for more details about the current status of this investigation.


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