On May 19, 2009, the Federal Circuit issued its opinion in Erbe Elektromedizin GMBH v. ITC, No. 2008-1358.  Judge Dyk, sitting on a panel with Chief Judge Michel and Judge Rader, affirmed the ITC’s claim construction and findings of no infringement.

By way of background, the ITC instituted the underlying investigation (Certain Endoscopic Probes for Use in Argon Plasma Coagulation Sys., 337-TA-569) based on Erbe Elektromedizin GmbH and ERBE USA, Inc.’s (collectively, “Erbe”) April 10, 2006 complaint against Canady Technology, LLC and Canady Technolology Germany GmbH (collectively, “Canady”), alleging violation of Section 337 by Canady’s importation and sale of certain endoscopic probes for use in argon plasma coagulation (“APC”) systems that coagulate bleeding tissue during electrosurgery.  As we explained in our March 30 post, oral arguments in this matter were heard by the Federal Circuit on April 3, 2009.


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By Eric Schweibenz
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May
18
On May 15, 2009, Red Bull GmbH of Austria and Red Bull North America, Inc. of Santa Monica, California (collectively, “Red Bull”) filed a complaint requesting that the ITC commence an investigation pursuant to section 337.

According to the complaint, the following proposed respondents unlawfully import into the U.S., sell for importation, and sell and distribute within the U.S after importation gray market energy drink products which are materially different from Red Bull’s energy drink:

  • Chicago Import Inc. of Chicago, Illinois;

  • Lamont Dist., Inc. a/k/a Lamont Distributors Inc. of Brooklyn, New York;

  • India Imports, Inc., a/k/a International Wholesale Club of Metairie, Louisiana;

  • Washington Food and Supply of D.C., Inc. a/k/a Washington Cash & Carry;

  • Vending Plus, Inc. of Glen Burnie, Maryland; and

  • Baltimore Beverage Co. of Glen Burnie, Maryland.


Red Bull asserts that these proposed respondents have violated Section 337 by infringing Red Bull U.S. Trademark Reg. Nos. 3,092,197; 2,946,045; 2,994,429; and 3,479,607, as well as Red Bull Copyright Reg. No. VA0001410959.  Specifically, Red Bull alleges in the complaint that the proposed respondents’ gray market energy drink products may have “different languages on the cans, omitted or different nutritional information and other unfamiliar wording on the cans, shoddy and inferior overlabeling on the cans, different local distributor contact information (e.g., a Dubai address rather than the U.S. California address), and a different overall image than U.S. Red Bull Energy Drink products.”  Red Bull also charges that those handling the proposed respondents’ gray market energy drink products outside of the authorized distribution channels are not subject to quality control standards required for Red Bull energy drink products.  Moreover, according to the complaint, the distribution of the proposed respondents’ energy drink products “causes or is likely to cause purchaser or consumer confusion, mistake, and/or deception to the detriment of Red Bull, as well as to the detriment of consumers and purchasers in the United States.”


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By Eric Schweibenz
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May
18
On May 14, 2009, ALJ Carl C. Charneski issued the public version of Order No. 35 (dated May 6, 2009) in Certain Variable Speed Wind Turbines and Components Thereof (Inv. No. 337-TA-641).  In the Order, ALJ Charneski denied complainant General Electric Co.’s (“GE”) motion in limine to prevent respondents Mitsubishi Heavy Industries, Ltd., Mitsubishi Heavy Industries America, Inc., and Mitsubishi Power Systems Americas, Inc.’s (collectively, “MHI”) expert, Dr. Thomas G. Habetler (“MHI’s expert”), from testifying as to invalidity positions presented initially in his “Contention Rebuttal Report.”

GE’s motion in limine sought to exclude new obviousness, written description, and enablement arguments that MHI’s expert presented for the first time in his February 3, 2009 Contention Rebuttal Report.


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By Eric Schweibenz
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May
18
On May 14, 2009, ALJ Carl C. Charneski issued the public versions of Order No. 37 (dated May 6, 2009) and Order No. 40 (dated May 7, 2009) in Certain Variable Speed Wind Turbines And Components Thereof (337-TA-641).  In the Orders, ALJ Charneski denied Respondents Mitsubishi Heavy Industries, Ltd., Mitsubishi Heavy Industries America, Inc., and Mitsubishi Power Systems Americas, Inc.’s (collectively, “MHI”) motions in limine seeking orders to preclude complainant General Electric Company (“GE”) from offering certain evidence relating to alleged inequitable conduct committed during prosecution of the patents-in-suit.

According to Order No. 37, MHI sought to preclude an analysis performed by GE regarding a German Patent Office search report relating to a German patent application that corresponds to one of the U.S. patents being asserted by GE in the investigation.  Specifically, MHI sought to preclude GE from offering evidence purporting to show good faith in connection with its alleged failure to disclose the German Patent Office search report and references cited therein to the U.S. Patent and Trademark Office (“USPTO”).  ALJ Charneski denied MHI’s motion, determining that the facts were scarce and, to the extent they existed, such facts were in dispute.  ALJ Charneski further determined that MHI would be permitted to renew its objections at the evidentiary hearing.


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By Eric Schweibenz
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May
15
On May 14, 2009, ALJ Robert K. Rogers, Jr. issued Order No. 43 in Certain Semiconductor Integrated Circuits and Products Containing Same (337-TA-665).  In the Order, ALJ Rogers ruled on requests filed by complainant Qimonda AG (“Qimonda”) and respondents LSI Corporation, Seagate Technology, Seagate Technology (US) Holdings Inc., Seagate Technology LLC, Seagate Memory Products (US) Corporation, and Seagate (US) LLC’s (collectively “Respondents”) for the receipt into evidence of certain proposed exhibits without a sponsoring witness.

ALJ Rogers first noted that the ITC’s rules provide that “[r]elevant, material, and reliable evidence shall be admitted.”  ALJ Rogers also noted that his Ground Rules provide that each exhibit that is offered into evidence must have a sponsoring witness and the only exception to this general rule is where the party wishing to have evidence admitted without a sponsoring witness shows good cause for admitting such evidence.


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