In the Order, ALJ Bullock denied a joint motion filed by Complainant and Respondents to amend the Ground Rules to include provisions addressing electronic service, the time of Discovery Committee meetings, the timing for exchanging privilege logs and contents thereof, the timing and format of document production, the protection of inadvertently produced privileged or work-product protected materials, and the scope of expert discovery.  The Commission Investigative Staff did not oppose the joint motion. 

According to the Order, ALJ Bullock denied the motion noting that it is “inappropriate to amend the Ground Rules in the manner suggested by the Private Parties.”  In any event, ALJ Bullock determined that “the Private Parties are free to enter into a private agreement or stipulation regarding, inter alia, electronic service, the scope of expert discovery, and the inadvertent production of privileged information or work-product protected materials.”  Lastly, ALJ Bullock noted that he will not enforce any private agreements and the parties are thus responsible for resolving any disputes on their own.

In the Order, ALJ Essex set the procedural schedule for the investigation and included provisions for the early exchange of claim construction terms and proposed constructions.  ALJ Essex further indicated that the evidentiary hearing will commence on August 27, 2012, any final initial determination will issue no later than December 7, 2012, and the target date for completion of the investigation is April 7, 2013 (which is approximately 16 months after institution of the investigation).

In the Order, ALJ Essex granted a motion filed by Complainants Trek Technology (Singapore) Pte. Ltd., Trek 2000 International Ltd., and S-Com (S) Pte. Ltd. (collectively, “Trek”) and Respondent Patriot Memory, LLC (“Patriot”) to terminate the investigation based on a settlement agreement.  After reviewing the confidential and non-confidential versions of the agreement, ALJ Essex granted the joint  motion filed by Trek and Patriot.

The Investigation remains pending against several other Respondents.

In the Order, ALJ Bullock granted a joint motion filed by Complainant Cypress Semiconductor Corporation (“Cypress”) and Respondent Alcatel-Lucent (“ALU”) to terminate the investigation based upon Cypress’s withdrawal of the First and Second Amended Complaint, in their entirety, as against ALU.

The Investigation remains pending against several other Respondents.

According to the article, 70 new investigations were instituted under Section 337 during FY 2011, which is up from 51 new investigations in FY 2010.  Despite the record number of new filings, the average completion time for investigations concluded during FY 2011 was 13.7 months.  This is down from 18.4 months in FY 2010 and 17.9 months in FY 2009. 

As expected, the majority of cases instituted under Section 337 involved allegations of patent infringement.  Lynn Levine, Director of the ITC’s Office of Unfair Imports Investigations, indicates that attorneys who practice before the ITC attribute the agency’s ever increasing Section 337 docket to the ITC’s ability to issue exclusion orders and to quickly complete investigations.

Further, during FY 2011, the ITC increased the number of attorneys in its Office of the Administrative Law Judges and Office of the General Counsel, hired two new administrative law judges to replace two that had retired, and allocated funds to build a third courtroom and related work areas.

According to the article, the ITC has been examining issues relating to e-discovery for nearly a year, gathering input from litigants, academics, district court judges, and bar associations.  In 2010, Chief Judge Rader asked the Federal Circuit Advisory Council to study e-discovery issues and develop an e-discovery model order for consideration by district courts in patent cases.  On January 11, 2012, Chief Judge Rader and three members of the Council came to the ITC to present an analogous proposal for Section 337 investigations.

The article states that the proposal tracks the approach of the district court e-discovery model order.  In particular, litigants would:

• indicate whether electronic documents such as e-mail are being sought or not;
• presumptively limit the number of custodians whose files will be searched, the locations of those documents, and the search terms that will be used (if litigants exceed the specified limits, they would assume the additional costs);
• use focused search terms limited to specific contested issues; and
• allow privileged documents to be exchanged without losing privilege.

Chief ALJ Charles E. Bullock and ITC Chairman Deanna Tanner Okun both expressed their appreciation for Chief Judge Rader and the Council’s presentation.  After the presentation, ALJ Bullock stated that he is “optimistic that the USITC will come up with a suitable approach to address litigants’ legitimate discovery needs while balancing the costs associated with e-discovery in section 337 investigations.”

In the Order, ALJ Shaw set April 19, 2013 as the target date for completing the investigation (which is fifteen months after institution of the investigation).  ALJ Shaw further determined that the initial determination on violation shall be due on December 19, 2012.

By way of background, the Complaint in this investigation is Schweitzer-Mauduit International Inc.  The Respondents are Julius Glatz GmbH, LIPtec GmbH, and KneX Worldwide LLC (collectively, the “Respondents”). 

According to the notice, ALJ Gildea determined that no violation of Section 337 had occurred by the Respondents in the importation into the United States, the sale for importation, or the sale within the United States after importation of certain reduced ignition proclivity cigarette paper wrappers by reason of infringement of (i) claims 1-6, 10-18, and 22-25 of U.S. Patent No. 5,878,753 (the ‘753 patent), and (ii) claims 36, 43, and 45 of U.S. Patent No. 6,725,867 (the ‘867 patent). 

ALJ Gildea further determined that a domestic industry does not exist that practices the ‘753 patent.  ALJ Gildea also determined that a domestic industry does exist that practices the ‘867 patent. 

With respect to the public interest, ALJ Gildea determined that enforcement of a remedy in this investigation would not raise public interest issues.

The notice issued by ALJ Gildea released only the first two pages of the ID.  We will provide additional information after the public version of the ID issues in its entirety.

In the Order, ALJ Rogers granted a joint motion filed by Complainant Technology Properties Limited LLC (“TPL”) and Respondent ViewSonic Corporation (“ViewSonic”) to terminate the investigation based on a settlement agreement.  After reviewing the confidential and non-confidential versions of the agreement, ALJ Rogers granted the joint motion filed by TPL and ViewSonic.

In the Order, ALJ Gildea set the procedural schedule for the investigation and provided for the early exchange of claim terms for construction.  ALJ Gildea also determined that the evidentiary hearing will commence on December 10, 2012, any final initial determination will issue no later than March 26, 2013, and the target date for completion of the investigation is July 26, 2013 (which is 19 months after institution of the investigation).