The William and Mary Law Review has recently published a study entitled “Court Specialization: An Empirical Study of Claim Construction Comparing Patent Litigation Before Federal District Courts and the International Trade Commission.”  The study was authored by David L. Schwartz, Assistant Professor of Law at The John Marshall Law School in an effort to predict the effectiveness of specialized patent trial courts which are currently being considered by Congress.

In the study, Mr. Schwartz suggests that “proposed quasi-specialized patent courts should be approached with some skepticism.”  Mr. Schwartz bases his suggestion on the fact that his study found little empirical evidence that specialized patent courts would be more accurate on the essential issue of claim construction.  Using the ITC as an example of a specialized patent court, the study compared the reversal rates of ALJs and District Court judges on the issue of claim construction.  In particular, the study found that the ITC’s reversal rate was slightly higher at 31.0% than the reversal rate of 30.7% averaged for the five busiest district courts (i.e., N.D. Cal., C.D. Cal., N.D. Ill., D. Del., and S.D.N.Y.).  In view of the reversal rates, Mr. Schwartz concludes that ALJs perform no better than district court judges on the essential issue of claim construction.  Further, Mr. Schwartz suggests three possible explanations for the apparent similar performance of the District Court and ITC on claim construction issues.  The explanations are that “(1) trial judges (including ALJs of the ITC) cannot master claim construction; especially without a technical background; (2) the Federal Circuit’s claim construction case law is poorly articulated; or (3) claim construction is inherently indeterminate.”


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On May 29, 2009, ALJ Robert K. Rogers, Jr. issued the public version of Order No. 21 (dated April 16, 2009) in Certain Semiconductor Integrated Circuits and Products Containing Same (Inv. No. 337-TA-665).  In the Order, ALJ Rogers denied (1) complainant Qimonda AG’s (“Qimonda”) motion for summary determination that it meets the economic prong of the domestic industry requirement and (2) respondents LSI Corp., Seagate Technology (US) Holdings Inc., Seagate Technology LLC, Seagate Memory Products (US) Corp., Seagate Technologies International (Singapore), and Seagate (US) LLC’s (collectively “Respondents”) motion for summary determination that Qimonda cannot meet the economic prong of the domestic industry requirement.

The parties disputed the law on the proper timing for determining whether a complainant satisfies the domestic industry requirement.  Qimonda argued that the domestic industry analysis should focus on the time the complaint was filed, while Respondents argued that events taking place after the filing of the complaint could also be considered in the analysis.  This issue is important in this investigation because Qimonda’s domestic activities had decreased after the complaint was filed, due to the company’s bankruptcy.


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By Eric Schweibenz
|
Jun
03
On June 1, 2009, the ITC issued a Notice determining to review the April 1, 2009 Remand Initial Determination (“RID”) in Certain R-134a Coolant (Otherwise Known as 1,1,1,2-Tetrafluorothane) (337-TA-623).

By way of background, this investigation was instituted in December 2007 based on a complaint filed by INEOS Fluor Holdings Ltd., INEOS Fluor Ltd. and INEOS Fluor Americas LLC (“INEOS”).  INEOS’ complaint alleged violations of section 337 by respondents Sinochem Modern Environmental Protection Chemicals (Xi’an) Co. Ltd., Sinochem Ningbo Ltd., Sinochem Environmental Protection Chemicals (Taicang) Co., Ltd., and Sinochem (U.S.A.) Inc. (collectively, “Sinochem”) in the importation into the U.S., the sale for importation, and the sale within the U.S. after importation of certain R-134a coolant (otherwise known as 1,1,1,2-tetrafluorothane) by reason of infringement of certain patents, including U.S. Patent No. 5,559,276 (the “‘276 patent”).


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On May 29, 2009, ALJ Robert K. Rogers, Jr. issued the public version of Order No. 37 in Certain Semiconductor Integrated Circuits and Products Containing Same (337-TA-665).  In the Order, ALJ Rogers granted-in-part and denied-in-part Complainant Qimonda AG’s (“Qimonda”) motion to compel respondents Seagate Technology, Seagate Technology (US) Holdings Inc., Seagate Technology LLC, Seagate Memory Products (US) Corporation, and Seagate (US) LLC (“Seagate”) to produce documents and testimony regarding Seagate’s downstream products.

ALJ Rogers first determined that Qimonda met its meet and confer obligations under the ground rules by raising the issue of the scope of Seagate’s accused downstream products in an April 14, 2009 Discovery Committee Report.


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On May 28, 2009, ALJ Robert K. Rogers, Jr. issued the public versions of Order No. 20 (dated April 13, 2009) and Order No. 31 (dated May 4, 2009) in Certain Semiconductor Integrated Circuits and Products Containing Same (Inv. No. 337-TA-665).  In Order No. 20, ALJ Rogers granted-in-part and denied-in-part respondents LSI Corp., Seagate Technology (US) Holdings Inc., Seagate Technology LLC, Seagate Memory Products (US) Corp., Seagate Technologies International (Singapore), and Seagate (US) LLC’s (collectively “Respondents”) motion to preclude complainant Qimonda AG (“Qimonda”) from relying on licensees or licenses to establish standing or meet the domestic industry requirement.  Subsequently, in Order No. 31, ALJ Rogers granted-in-part and denied-in-part Qimonda’s motion to amend its complaint.

As to Order No. 20, Respondents argued that Qimonda had failed to comply with Commission Rules 210.12(a)(9)(iii)-(iv) and thus should be precluded from relying on any licensees or license agreements to show standing or meet the domestic industry requirement.  Rule 210.12(a)(9)(iii) requires that a 337 complaint include “[t]he identification of each licensee under each involved U.S. patent.”  Rule 210.12(a)(9)(iv) requires that the complaint include “[a] copy of each license agreement (if any) for each involved U.S. patent that complainant relies upon to establish its standing or to support its contention that a domestic industry…exists…”  Respondents argued that (1) Qimonda merely provided a list of companies that “may” be parties to licensing agreements that cover the asserted patents, and (2) Qimonda had not attached a single license agreement to its complaint.


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