On August 14, 2008, Amsted Industries Inc. (“Amsted”) filed a complaint alleging a violation of Section 337 in the importation into the United States, the sale for importation, and the sale within the United States after importation of certain cast steel railways and certain products containing same by reason of misappropriation of its trade secrets (the “ABC Trade Secrets”).  The complaint named Tianrui Group Company Limited; Tianrui Group Foundry Company Limited; Standard Car Truck Company, Inc. and Barber Tianrui Railway Supply, LLC (collectively “Tianrui”) as respondents.  The ITC instituted an investigation entitled Certain Cast Steel Railway Wheels, Certain Processes For Manufacturing Or Relating To Same And Certain Products Containing Same (Inv. No. 337-TA-655).  An evidentiary hearing was held, and on October 16, 2009, ALJ Carl C. Charneski issued an Initial Determination (“ID”) finding a violation of Section 337 by Tianrui with respect to the ABC Trade Secrets.  See our October 19, 2009 and December 4, 2009 posts for more details.  On December 17, 2009, the Commission issued a notice determining not to review the ID.  See our December 18, 2009 post for more details.  On February 16, 2010, the Commission issued a notice of Issuance Of A Limited Exclusion Order and Cease and Desist Order; Termination of the Investigation.  See our February 19, 2010 post for more details.

According to Tianrui’s opening and reply briefs, Tianrui raises two primary issues on appeal.  First, Tianrui asserts that the “Commission exceeded it statutory authority when it applied Illinois law extraterritorially to find a violation of Section 337 based on acts of misappropriation that occurred entirely in China.”  In particular, Tianrui argues that Section 337 “contains no express language authorizing the ITC to apply U.S. state trade secret law extraterritorially to find an ‘unfair act’ within the meaning of subsection (a)(1)(A).”  Rather, as Tianrui argues, the only appropriate extraterritorial application of Section 337 relates to applying U.S. process patent law to acts overseas because Congress “enacted specific legislation for that purpose.”  Second, Tianrui asserts that the ITC erred in finding that a domestic industry exists because the ITC “improperly departed from its longstanding interpretation that a complainant in a Section 337 investigation seeking to enforce its IP rights must practice the asserted IP in the United States to satisfy the domestic industry requirement.”  Specifically, Tianrui argues that “the Commission, by adopting the ID, erroneously reinterpreted the statute to hold that a trade secret complainant seeking to enforce its IP rights need not practice the asserted IP domestically to establish the existence of a domestic industry.”

In its response brief, the ITC asserts that Tianrui’s appeal should be rejected for the following four reasons: (1) “the Commission’s established, unappealed jurisdiction renders moot any extraterritoriality assertions,” (2) “the Commission has not applied Illinois trade secret law extraterritorially because the illegal product (i.e., Tianrui wheels) have been imported into the United States” (emphasis in original), (3) Tianrui’s “misappropriation of [the] ABC Trade Secrets has included misappropriation in the United States, including unauthorized acquisition, disclosure and use of [the] ABC Trade Secrets in the United States” (emphasis in the original), and (4) “trade secret misappropriation is a proper basis for finding a violation of §337(a)(1)(A).”  Further, the ITC asserts that the “Commission properly applied §337(a)(1)(A)’s plain and unambiguous language and Commission precedent to determine that the domestic industry in this, or any, trade secret investigation is the industry in the United States that is the target of the unfair acts, taking into account marketplace realities.”

Finally, Amsted’s intervenor brief seeks affirmation of the ITC’s finding of a violation of Section 337 by the accused products for two reasons.  First, Amsted asserts that Tianrui “overlooks that some of the misappropriation actually took place in the United States and at the United States border.”  In support of this assertion, Amsted argues that under the governing Illinois statute “‘misappropriation’ of a trade secret comprises not only improper acquisition, but also unauthorized ‘use’ of the trade secret.”  Thus, according to Amsted, the “Commission correctly found that it has authority to bar importation of articles that misappropriate U.S. trade secrets, irrespective of where the articles are manufactured.”  Second, Amsted asserts that the Commission properly rejected Tianrui’s assertions with respect to the domestic industry requirement.  In particular, Amsted argues that Subparagraph (A) of §337(a)(1), as opposed to subparagraphs (B)-(D), is based on common law rather than statutory intellectual property rights.  Therefore, although §337(a)(2) “expressly creates a requirement that the domestic industry practice or exploit the asserted intellectual property right, [it] explicitly applies this requirement only to statutory-based intellectual property rights investigations covered by Subparagraphs (B)-(D) of Section 337(a)(1).”

According to the order, AGNC moved to compel Respondents Navico Holding AS, Navico UK, Ltd. and Navico Inc. (collectively, “Navico”) to provide responses to certain interrogatories and to produce files relating to and including source code for the accused autopilot products.  In support of its motion, AGNC asserted, inter alia, that the source code may be necessary to verify the operation of the accused products in NAV mode, which is relevant to the “computing rotation commands” and “pointing controller for computing rotation command” elements of certain of the asserted claims, and “to verify the use and/or processing of the attitude information from the compass and/or autopilot.”  AGNC also asserted that Navico should produce its source code under the existing protective order because AGNC had already done so after the parties failed to agree on a mutually acceptable source code addendum to the Protective Order.  Navico opposed the motion asserting that its proposed addendum to the Protective Order should be entered and that AGNC should be directed to proceed in accordance the addendum.  The Commission Investigative Staff supported the motion.

Having found that the parties’ attempts at resolving the dispute relating to the production of source code “has been going on for month without any success,” ALJ Luckern granted AGNC’s motion.  In do so, ALJ Luckern noted that “the existing protective order, which has been in existence for many years, has been adequate for past investigations.”

The complaint alleges that LG Electronics, Inc. of South Korea and LG Electronics U.S.A., Inc. of New Jersey (collectively, “LG”) unlawfully and without authorization import into the U.S., sell for importation, and/or sell within the U.S. after importation certain display devices, including digital televisions and monitors that infringe U.S. Patent Nos. 5,731,847 (the ‘847 patent), 5,583,577 (the ‘577 patent), RE 40,468 (the ‘468 patent), and 6,661,472 (the ‘472 patent) (collectively, “the Asserted Patents”).

According to the complaint (1) the ‘847 patent “is generally directed to the synchronization and display of closed caption information, such as subtitles, on video pictures,” (2) the ‘577 patent “is generally directed to methods and systems for coding and decoding data to be superimposed on a displayed video image,” (3) the ‘468 patent “is generally directed to the secure transmission of video data from one device to another over a data bus,” and (4) the ‘472 patent “is generally directed to a fast and intuitive technique for selecting channels in a digital television.”

In the complaint, Sony alleges that LG imports and sells products that infringe the asserted patents.  The complaint specifically names the LG 32LD350 LCD TV and LG E2360V LCD Monitor as infringing products.

With respect to related litigation, Sony identifies in the complaint various proceedings regarding the Asserted patents, including another ITC complaint and three district court actions in the United States District Court for the Central District of California.

Regarding domestic industry, Sony asserts that it “has made significant investments in plant and equipment, significant employment of labor and capital, and substantial investments in its exploitation of the Asserted Patents, including research and development, repair and refurbishment, warranty support, licensing, and litigation.”  In particular, Sony alleges that its digital televisions that are sold and supported in the United States, including the Sony KDL-26L5000 LDC TV, practice at least one or more claims of the Asserted Patents.  Sony also asserts that although its digital television are manufactured abroad, “two of its principal U.S.-based subsidiaries . . . conduct significant domestic industry activities in the United States relating to the Sony digital televisions that practice the Asserted Patents.”  Further, Sony asserts that it “has been and is currently engaged in, extensive licensing activities relating to the Asserted Patents.”  In this regard, Sony indicates that the related litigations mentioned above resulted in licenses.

With respect to potential remedy, Sony requests that the Commission issue a permanent exclusion order and a permanent cease and desist order directed at LG.

In support of its motion, Verizon asserted that the domestic industry requirement was satisfied in view of the fact that, inter alia, (1) “the technologies in the Verizon patents are embodied in set-top boxes, software, and network equipment used to provide Verizon’s FiOS TV services,” (2) Verizon employees “were involved in the design, development and creation of the first FiOS TV service offering,” (3) “Verizon has now deployed FiOS TV services in 14 states and the District of Columbia,” (4) “FiOS TV video services cannot operate without set-top boxes,” (5) “software programs on FiOS set-top boxes . . . ‘are critical elements in Verizon’s FiOS TV services,’” (6) “Verizon is investing $23 billion to deploy a fiber-optic network through which it provides FiOS TV video services,” (7) “employees have been involved in the ‘development, deployment, and enhancement of FiOS TV services,” (8) “Verizon ‘devotes substantial resources’ to testing, installing, supporting, and marketing these set-top boxes,” and (9) “Verizon’s software investment enables it to exploit [the patents-in-suit].”

Opposing Verizon’s motion, Respondent Cablevision Systems Corporation (“Cablevision”) asserted three main objections.  In particular, Cablevision asserted that Verizon (1) “did not clearly articulate which statutory subsection it [relied] upon for its domestic industry,” (2) “has not shown a sufficient connection between its expenditures and the patented technology at issue in this Investigation,” and (3) “has not allocated its expenditures with sufficient detail,” which precludes any determination that Verizon’s investments are “‘substantial,’ as required by Section 337(a)(3)(C).”  The Commission Investigative Staff filed a response in support of Verizon’s motion, but “reject[ed] Verizon’s reliance on its $23 billion investment in deploying the FiOS network in general, and [its] reliance on investment in network equipment specific to video services.”

According to the order, ALJ Gildea rejected all of Cablevision’s assertions.  First, ALJ Gildea rejected as having no merit, the assertion that Verizon did not adequately identify the statutory authority upon which it relied.  Second, ALJ Gildea found Cablevision’s assertion that a sufficient connection between Verizon’s expenditures and the patented technology had not been shown was based on an incorrect assumption, namely, that “the only relevant activities in this Investigation are those devoted to designing the inner workings of a set-top box.”  Rather, ALJ Gildea concluded that “Verizon’s investments will satisfy the economic prong under Section 337(a)(3)(C) if those investments are for engineering or research and development within the United States that fosters propagation or use of the technology covered by the asserted patents.”  Thus, ALJ Gildea determined that it was “appropriate to consider Verizon’s domestic investments in portions of that [FiOS TV video] system” because “Verizon brings the technology in the asserted patents to the market place through development of [that system].”  Accordingly, because Verizon presented several undisputed facts regarding its domestic development activities, ALJ Gildea determined that Verizon had satisfied the standard under Section 337(a)(3)(C).  Third, ALJ Gildea found the assertion that Verizon did not allocate its expenditures with sufficient detail to determine whether they are “substantial,” “imposes a burden beyond the requirement of the statute.”  Instead, ALJ Gildea determined that “Verizon has put forth a sufficiently focused effort in exploiting the patented technology through domestic investments.”  In view of the above, ALJ Gildea determined “that Verizon’s domestic activities directed at exploiting the asserted patents are substantial” and granted Verizon’s motion.

According to the order, Apple moved to compel Respondents HTC Corp., HTC America, Inc., and Exedea, Inc. (collectively, “HTC”)  to produce certain outstanding discovery.  In particular, Apple asserted that HTC should be compelled to provide (i) witness testimony in the United States on Android 2.2, since HTC belatedly produced the Android 2.2 source code after the depositions of HTC’s key technical witnesses, (ii) knowledgeable witnesses to testify in response to Deposition Topic Nos. 59 and 61 “regarding components in the Accused HTC Android Products,” and (iii) discovery regarding “[d]ata on the use, testing, marketing, customer complaints, and other dealings with customers [] relevant to, inter alia, direct infringement and induced infringement.”  HTC opposed Apple’s motion asserting that (i) “it promptly produced the Android 2.2 source code . . . as it became available after [its] products were upgraded to Android 2.2,” (ii) the witnesses it provided to testify regarding Deposition Topic Nos. 59 and 61 “were knowledgeable, ‘to the extent that HTC has knowledge,’” and (iii) the data sought by Apple was either “not relevant to the present investigation” or “moot in light of HTC’s production of its sales and revenue data.”

In the order, ALJ Charneski granted-in-part Apple’s motion.  Specifically, ALJ Charneski determined that Apple was entitled to depose HTC software engineers and a corporate designee on the Android 2.2 since “it is not disputed that Apple did not receive the subject Android 2.2 source code until after the completion of certain depositions.”  ALJ Charneski also ordered that HTC designate a knowledgeable witness to testify as to Deposition Topic Nos. 59 and 61.  Finally, ALJ Charneski denied the remainder of Apple’s motion having found that “Apple has failed to show that the involved deposition topics are relevant to this investigation” or “that HTC has failed to produce the documents sought in [the] subject Requests for Production.”

According to the order, Spansion moved to compel Respondent Samsung Electronics Co., Ltd (“Samsung”) to respond to discovery regarding the full scope of the accused products in the investigation.  In this regard, Spansion asserted that the scope of discovery “includes both NAND and NOR flash memory devices.”  Particularly, Spansion asserted that Samsung had limited its discovery responses to NAND flash memory.  In opposition, Samsung asserted that the scope of discovery is limited by Spansion’s complaint which lists only NAND flash memory devices.  The Commission Investigative Staff supported Spansion’s motion.

In the order, ALJ Rogers rejected Samsung’s assertion that Spansion’s complaint limited the scope of discovery in the investigation – finding it factually incorrect and not supported by the cases cited by Samsung.  Instead, ALJ Rogers noted that, pursuant to Commission Rule 210.10(b), “the notice of investigation issued by the Commission ‘will define the scope of the investigation.’”  In granting Spansion’s motion, ALJ Rogers found that “[t]he Notice does not limit the flash memory devices at issue to NAND devices.”  Accordingly, ALJ Rogers ruled that “Spansion’s request for discovery related to Samsung’s NOR flash memory technology is reasonably calculated to lead to discovery of admissible evidence [and that] Samsung shall supplement its discovery responses to include responsive documents and information relevant to Samsung’s NOR flash memory devices.”  Separately, ALJ Rogers found it worth noting that Samsung had recently argued a position to the contrary in Certain Flash Memory and Products Containing Same, Inv. No. 337-TA-685.  In this regard, ALJ Rogers stated, “[t]he discovery rules do not change simply because Samsung is now a respondent instead of a complainant.”

In support of their motion, Respondents cited to intrinsic and extrinsic evidence that supported the assertion that the patentee had disclaimed in claim 1 of the ‘306 patent, printed circuit boards (“PCBs”) “thinner than 0.35 mm” or “PCBs having a thickness of less than 0.35 mm.”  In particular, Respondents argued that thicknesses of less than 0.35 mm were disclaimed during the prosecution of U.S. Patent No. 6,465,743 (the ‘743 patent), which issued from a parent application to the ‘306 patent.  In this regard, Respondents asserted that the patentee distinguished “prior art substrates less than 0.35 mm thick [because they] required metal support pallets which ‘prevented the use of automated equipment’ and ‘the invention of pending claims 13-20 allows manufacturers to use automated equipment.’” (original brackets omitted).  In opposing the motion, Complainant Freescale Semiconductor, Inc. (“Freescale”) asserted, inter alia, that “the statements relied upon by the Respondents do not ‘even impl[y] that the word ‘thickness’ means ‘greater than ‘0.35 mm’ let alone constitute the clear unequivocal disavowal required by the courts.”  Rather, Freescale argued that the statements were a “discussion of the background [that] was intended to help the Board [of Patent Appeals and Interferences] understand the general technology at issue, not to distinguish the claims from the references used to reject the claims.”  According to Freescale, the word thickness should be construed according to its “plain and ordinary meaning.”  The Commission Investigative Staff filed a memorandum in support of the Respondents’ motion.

According to the order, ALJ Luckern rejected Freescale’s arguments and found that in view of the language of claim 1 and the intrinsic evidence (for example, statements found in the specification of the ‘306 patent and made during the prosecution of the ‘743 patent that criticized prior art PCBs having thicknesses of 0.35 mm), it is “clear that [the patentee] viewed the claimed invention, which ‘allows manufacturers to use automated equipment,’ as excluding PCBs recited in claim 1 in issue that are thinner than 0.35 mm.”  Accordingly, ALJ Luckern granted the Respondents’ motion because under the correct construction of the claim term “thickness,” the accused products could not be found to infringe claim 1 of the ‘306 patent, either literally or under the doctrine of equivalents.

On December 21, 2007, Tessera, Inc. (“Tessera”) filed a complaint alleging violations of Section 337 in the importation into the United States, the sale for importation, and the sale within the United States after importation of certain semiconductor chips with minimized chip package size and products containing same by reason of infringement of U.S. Patent Nos. 5,663,106 (“the ‘106 patent”), 5,679,977, and 6,133,627 (collectively, “Asserted Patents”), which led to Investigation No. 337-TA-630.  The complaint named eighteen respondents, several of whom either settled out of the investigation or defaulted.  Those filing intervenor briefs include Elpida Memory, Inc., Elpida Memory (USA), Inc., (collectively, “Elpida”), Acer, Inc., Acer America Corporation, Nanya Technology Corporation, Nanya Technology Corporation, U.S.A., PowerChip Semiconductor Corporation, (collectively, “Acer”), and Kingston Technology Company, Inc. (“Kingston”) (collectively, “Respondents”).  An evidentiary hearing was held, and on August 28, 2009, ALJ Theodore R. Essex issued an Initial Determination (“ID”) finding no violation of Section 337 by Respondents with respect to any of the asserted claims of the Asserted Patents.   In particular, ALJ Essex determined that the accused products did not infringe the asserted claims of the ‘106 patent and the doctrine of patent exhaustion applied because all the chips that Respondents purchased from Tessera’s licensees were authorized by Tessera to be sold.

On October 30, 2009, the Commission determined to review the final ID in part.  Specifically relevant to the appeal, the Commission determined to review (i) the finding that the claim term “top layer” recited in claim 1 of the ’106 patent means “an outer layer of the chip assembly upon which the terminals are fixed,” (ii) the requirement that “the ‘top layer’ is a single layer,” and (iii) the finding that the claim term “thereon” recited in claim 1 of the ’106 patent requires “disposing the terminals on the top surface of the top layer.”  Upon review, the Commission modified, inter alia, ALJ Essex’s constructions of certain limitations in the ’106 patent.  However, the Commission’s modifications did not result in reversing ALJ Essex’s findings of no violation of Section 337 by the accused products.

According to Tessera’s opening and reply briefs, two primary issues are raised on appeal.  Further, these issues focused only on the ITC’s adjudication of the ’106 patent because the remaining patents would have expired before any exclusion order could effectively be put in place.  Thus regarding the ’106 patent, Tessera first asserted that the ITC improperly modified the correct claim construction of the ’106 patent when applying it to a second set of accused products.  In particular, Tessera argued that the ITC “added an unsupported supplemental requirement that the claimed ‘top layer’ could not include solder mask material.”  Second, Tessera asserted that “the ITC failed to revisit or correct [ALJ Essex’s] unnecessary and unprecedented departures from basic principles of patent exhaustion.”  Specifically, Tessera argued that the ITC’s application of the doctrine of patent exhaustion “transmutes a licensee’s willful failure to satisfy the preconditions of a license grant into a risk-free ‘authorization’ permitting all comers to use patented inventions for free.”

In its response brief, the ITC asserted that Tessera’s appeal is improper because it challenges several of the Commission’s factual findings that are supported by substantial evidence.  In this regard, the ITC asserted that Tessera “attempts to transform the Commission’s factual infringement finding into a claim construction issue in order to receive de novo review.”  Additionally, the ITC asserted that the Federal Circuit lacks jurisdiction to hear Tessera’s arguments with respect to the ITC’s application of the doctrine of patent exhaustion.  Specifically, the ITC asserted that Tessera’s appeal was untimely because it “filed its notice of appeal on January 28, 2010, more than 60 days after the Commission adopted the ALJ’s patent exhaustion finding on October 30, 2009 that finally disposed of Elpida and products purchased from Tessera’s licensees.”

Each of the intervenor briefs of Acer, Elpida and Kingston seeks affirmation of the ITC’s finding of no violation of Section 337 by the accused products.  In particular, the Acer and Kingston’s briefs both reiterate that the Commission’s determinations must be affirmed because Tessera improperly seeks de novo review of factual determinations that are supported by substantial evidence.  Elpida’s brief asserts that Tessera waived its right to appeal the ITC’s application of the doctrine of patent exhaustion with respect to its accused products because its appeal was untimely.  Elpida also argued that “[e]ven if jurisdiction existed, the Commission’s finding of exhaustion should be affirmed based on evidence of record showing that” its accused products were licensed and that “Tessera received and accepted royalty payments for those products.”

The complaint alleges that LG Electronics, Inc. of South Korea, LG Electronics U.S.A., Inc. of Englewood Cliffs, New Jersey, and LG Electronics Mobilecomm U.S.A., Inc. of San Diego, California (collectively, “LG”) unlawfully and without authorization import into the U.S., sell for importation, and/or sell within the U.S. after importation certain mobile telephones and modems that infringe U.S. Patent Nos. 6,311,092 (the ‘092 patent), 5,907,604 (the ‘604 patent), 6,263,205 (the ‘205 patent), 6,507,611(the ‘611 patent), 6,674,464 (the ‘464 patent), 7,839,447 (the ‘447 patent), and 6,674,732 (the ‘732 patent) (collectively, the “Asserted Patents”).

The accused products identified in the complaint include the following products manufactured by LG: Accolade (VX5600), Cosmos (VN250), Encore (GT550), enV Touch (VX11000), Fathom (VS750), Glance (VX7100), GU295, Lotus Elite (LX610), LX370, Neon (GT365), Quantum (C900), Remarq (LN240), Rumor Touch (LN510), VL600, Vu Plus (GR700), and Xenon (GR500).

According to the complaint (1) the ‘092 patent “relates generally to an apparatus designed to delay the recording of audio for a predetermined time after selection of [] recording controls,” (2) the ‘604 patent “relates generally to methods of associating an image of an individual’s face with that individual’s phone number,” (3) the ‘205 patent is directed to “maximiz[ing] communication capacity while also controlling the transmission power of the individual mobile telephones to maintain the stability of [a mobile telephone] system,” (4) the ‘611 patent relates to “transmitting digital audio that has been encoded by one of a plurality of encoders that is selected based on detecting the transmission rate of [a] network,” (5) the ‘464 and ‘447 patents relate to “apparatuses that process image data differently based on the mode in which the imaging device is operated,” and (6) the ‘732 patent relates to “transmitting or receiving wireless communication signals using both time-division and frequency-division” and “improv[ing] upon the signal quality available from using these channel sharing methods individually.”

Regarding domestic industry, Sony asserts that “[t]he domestic industry for the Asserted Patents includes the substantial United States investments and expenditures of Sony and/or Sony’s licensees, including Nokia, Samsung and Sony Ericsson, and substantial investment in the exploitation of the inventions claimed in the Asserted Patents, including through engineering, research and development, servicing, and licensing.”

With respect to related litigation, Sony identified “a concurrently filed District Court action in the United States District Court for the Central District of California.”

Regarding potential remedy, Sony requests that the Commission issue an exclusion order and a permanent cease and desist order directed at LG.

In Order No. 44, ALJ Charneski granted Complainant Samsung Electronics, Co., Ltd.’s (“Samsung”) motion for summary determination that Respondents Alpine Electronics, Inc. and Alpine Electronics of America, Inc. (collectively, “Alpine”) have met the importation requirement of 19 U.S.C. § 1337(a)(1)(B).  In support of its motion, Samsung alleged that Alpine infringes the asserted claims of U.S. Patent No. 5,740,065 (the ‘065 patent), and “identifie[d] the accused products that infringe the ‘065 patent as including, but not limited to,” certain products of Respondents Spansion, Inc. and Spansion LLC. (collectively, “Spansion”).  In granting Samsung’s motion, ALJ Charneski determined that “there is no real dispute in substance” given that “Alpine concedes that ‘the Commission has jurisdiction over certain Alpine downstream products containing Spansion chips that are imported into the United States’” and that “Alpine admitted that it has sold for importation and sold after importation products in the United States.” 

Similarly, in Order No. 45, ALJ Charneski granted Samsung’s motion for summary determination that Respondents D-Link Corporation and D-Link Systems, Inc. (collectively, “D-Link”) have met the importation requirement of 19 U.S.C. § 1337(a)(1)(B).  According to the order, ALJ Charneski noted that D-Link did not dispute that the Commission has jurisdiction over certain D-Link products that contain a Spansion chip and that have been imported into the United States.  Finding “no real dispute in substance”, ALJ Charneski granted Samsung’s motion.

In Order No. 47, ALJ Charneski denied Spansion’s motion for summary determination that the asserted claims of the ‘065 patent are not infringed or are invalid for indefiniteness under 35 U.S.C. § 112.  In support of its motion, Spansion asserted that with respect to the issue of infringement, Samsung’s expert “confirmed that the claims require use of Equation (1) – the patent’s only disclosure for accumulatively average working conditions . . ..”  Spansion also asserted that the claims were invalid as indefinite, “if not limited to implementation of Equation (1).”  In this regard, Spansion asserted that Samsung’s expert “also verified that unless the claims are limited to implementing Equation (1), they are unquestionably invalid under 35 U.S.C. § 112, ¶2 as indefinite.”  Samsung opposed the motion asserting that the expert testimony relied upon by Spansion “is taken out of context and is incomplete.”  Further, Samsung asserted that its expert “did not limit the ‘accumulatively averaging” claim phrase to Equation (1)” but that “Equation (1) teach[es] the use of a moving average, not the strained ever-increasing average that Spansion wrongly interpreted it to mean.”  Accordingly, ALJ Charneski found that “there exist genuine issues as to material facts” and “that Spansion is not, at this time, entitled to judgment as a matter of law.”