By way of background, the Complainant in this investigation is Rambus Inc. and the Respondents are NVIDIA Corp., Asustek Computer Inc., ASUS Computer International, Inc., BFG Technologies, Inc., Biostar Microtech (U.S.A.) Corp., Biostar Microtech International Corp., Diablotek Inc., EVGA Corp., G.B.T. Inc., Giga-byte Technology Co., Ltd., Hewlett-Packard Co., MSI Computer Corp., Micro-star International Co., Ltd., Palit Multimedia Inc., Palit Microsystems Ltd., Pine Technology Holdings, Ltd., and Sparkle Computer Co., Ltd. (collectively, “Respondents”).  On January 22, 2010, ALJ Theodore R. Essex issued an Initial Determination (“ID”) finding a violation of Section 337 through the importation, sale for importation, or sale within the U.S. after importation of certain semiconductor chips having synchronous dynamic random access memory controllers and products containing same that infringe one or more claims of U.S. Patent Nos. 6,470,405, 6,591,353 and 7,287,109.  The ALJ further found no infringement of the asserted claims of U.S. Patent Nos. 7,177,998 and 7,210,016.  See our May 4, 2010 post for more details.

On March 25, 2010, the Commission issued a notice determining to review the ID in part.  See our March 26, 2010 post for more details.

After requesting briefing with respect to remedy, the public interest, bonding, and licensing issues (see our June 22, 2010 post) the Commission determined to affirm ALJ Essex’s ID.

The Commission determined that the appropriate form of relief is an LEO and a CDO against Respondents NVIDIA Corp., Hewlett-Packard Co., ASUS Computer International, Inc., Palit Multimedia Inc., Palit Microsystems Ltd., MSI Computer Corp., Micro-Star International, EVGA Corp., DiabloTek, Inc., Biostar Microtech Corp., and BFG Technologies, Inc.  The Commission further determined that the public interest factors did not preclude issuance of these LEO or CDO orders, and that the bond during the Presidential review period should be set at 2.65 percent of the entered value of the imported products.

By way of background, the Complainant in this investigation is Amkor Technology, Inc. (“Amkor”) and the Respondents are Carsem (M) Sdn Bhd, Carsem Semiconductor Sdn Bhd, and Carsem, Inc. (collectively, “Carsem”).  The Commission instituted the investigation on December 19, 2003.  On November 9, 2005, ALJ Bullock issued the Remand ID finding that (1) there was a violation of Section 337 in connection with U.S. Patent No. 6,433,277 (the ‘277 patent); and (2) there was no violation of Section 337 in connection with U.S. Patent Nos. 6,630,728 and 6,455,356.

After ALJ Bullock issued the Remand ID, the investigation was delayed in connection with obtaining certain alleged prior art documents from non-party ASAT, Inc. (“ASAT”).  On July 1, 2008, the U.S. District Court for the District of Columbia granted the Commission’s petition to enforce subpoenas duces tecum and ad testificandum to ASAT in connection with the alleged prior art.  In response, Carsem renewed its motion to remand the investigation and reopen the record to include any new evidence obtained as a result of the enforcement of the subpoenas.

The Commission issued a Remand Order on July 1, 2009, ordering that (1) the investigation be remanded to reopen the record to admit any new evidence obtained as a result of the enforcement of the subpoena duces tecum to ASAT, and (2) the ALJ revise or supplement the Remand ID as appropriate, in light of the supplemental evidence, making all necessary findings concerning Carsem’s invalidity defenses.  On October 30, 2009, ALJ Bullock issued a First Supplemental Initial Determination (“First Supplemental ID”) reaffirming his finding of a violation of Section 337 despite the new evidence obtained from ASAT.  See our November 27, 2009 post for more details.

On February 18, 2010, the Commission issued an order reversing ALJ Bullock’s First Supplemental ID and remanding the investigation to the ALJ to make necessary findings on anticipation and obviousness in view of the Commission’s determination that the ASAT disclosures included additional prior art to Amkor’s asserted patents.  See our February 22, 2010 post for more details.  On March 22, 2010, ALJ Bullock issued the Second Supplemental ID finding no violation of Section 337 due to the anticipation and obviousness of various claims of the asserted patents in view of the ASAT prior art.  See our March 23, 2010 and April 9, 2010 posts for more details.

According to the July 20 notice, Amkor and Carsem filed initial comments seeking review of various portions of the Second Supplemental ID, and all parties filed response comments.

After examining the record of the investigation, including the Remand ID, the Second Supplemental ID, the comments, and the response comments, the Commission determined not to review the findings made in the Remand ID and Second Supplemental ID.  Accordingly, the Commission determined that there has been no violation of Section 337, and terminated the investigation.  Lastly, the notice states that “an opinion supporting the Commission’s determination will be issued.”

By way of background, the Complainant in this investigation is Eastman Kodak Company and the Respondents are Research In Motion, Ltd., Research In Motion Corporation, and Apple Inc. (collectively, “Respondents”).  The Commission instituted the investigation on February 17, 2010.  On April 26, 2010, ALJ Luckern issued an order granting Respondents’ motion requesting a Markman hearing, and a Markman hearing was conducted on May 24–25, 2010.  The ALJ issued the ID construing claim terms on June 22, 2010.  See our July 21, 2010 post for more details.

According to the July 22 notice, the parties each filed petitions for review of various portions of the ID.

After examining the record of the investigation, including the ID and petitions for review, the Commission determined to review the ID in its entirety and to solicit briefing with respect to the issues on review.  The Commission stated that it was “particularly interested in briefing on the question of the legal authority for addressing the issue of claim construction as a matter for summary determination and treating the claim construction ruling as an initial determination under the Commission’s rules of practice and procedure as currently written.”

In this connection, the Commission requested that the parties respond to a hypothetical analysis of Commission Rule 210.18(a) whereby that rule’s restriction on motions for summary determination to “issues to be determined in the investigation” or parts thereof is interpreted so as to exclude claim construction from the universe of questions that can form the subject of a motion for summary determination.  In particular, the Commission stated in its hypothetical analysis that “[c]laim construction may be a necessary underpinning to the resolution of certain issues or elements, and may be part of a summary determination that addresses an issue or element.  On its own, however, claim construction might not be viewed as constituting such an issue or element.”

Written submissions in response to the Commission’s July 22 notice are due on August 5, 2010, with reply submissions due on August 16, 2010.

The complaint alleges that LG Electronics, Inc. of South Korea and LG Electronics U.S.A., Inc. of Englewood Cliffs, New Jersey (collectively, “LGE”) have sold for importation, imported, and/or sold within the U.S. after importation certain flat panel digital televisions and components thereof that infringe certain claims of U.S. Patent Nos. 5,511,096, 5,621,761, 5,703,887, 5,745,522, 5,511,082, 5,396,518, and 5,233,629 (collectively, “the Asserted Patents).

According to the complaint, the “general technology at issue in this case involves the transmission and reception of digital television (‘TV’) signals via cable delivery systems.  More specifically, all of the Asserted Patents relate to the decoding and demodulation of digital TV signals transmitted via digital cable TV delivery system to a TV receiver.”

In the complaint, Vizio alleges that LGE’s digital television products are manufactured, assembled, and/or packaged and tested overseas, at least in Mexico.

Regarding related litigation, Vizio lists in its complaint a number of U.S. district court cases involving the asserted patents, including a pending litigation in the U.S. District Court for the District of Maryland against LGE, filed on June 5, 2009.

With respect to domestic industry, Vizio asserts that an industry exists in the U.S. relating to its digital televisions.  Specifically, Vizio alleges that its digital televisions practice at least one claim of each of the Asserted Patents.  In addition, Vizio asserts that its significant employment of labor and capital, and its substantial investment in exploitation of the Asserted Patents, constitute a domestic industry under 19 U.S.C. §§ 1337(a)(3)(B) and (C).

With respect to potential remedy, Vizio requests that the ITC issue a permanent limited exclusion order and permanent cease-and-desist orders directed to LGE.

Also on July 16, the Commission issued its first notice of receipt of a complaint.  As we explained in our July 13, 2010 post, the Commission will now issue these notices upon receipt of a Section 337 complaint to solicit comments from the complainant, proposed respondents, other interested parties, and members of the public on any public interest issues raised by the complaints.  According to the July 16 notice, the Commission is interested in comments that (i) explain how the articles potentially subject to the orders are used in the U.S., (ii) identify any public health, safety, or welfare concerns in the U.S. relating to the potential orders, (iii) indicate the extent to which like or directly competitive articles are produced in the U.S. or are otherwise available in the U.S., with respect to the articles potentially subject to the orders, and (iv) indicate whether Complainant, its licensees, and/or third party suppliers have the capacity to replace the volume of articles potentially subject to an exclusion order and a cease and desist order within a commercially reasonable time.  The July 16 notice further indicates that written submissions must be filed no later than by close of business, five business days after the date of publication of the notice in the Federal Register.

By way of background, the Complainants in this investigation are Avago Technologies Fiber IP Pte. Ltd., Avago Technologies General IP Pte. Ltd., and Avago Technologies Ltd.  The sole Respondent is Emcore Corporation (“Emcore”).  On March 12, 2010, ALJ Essex issued the Initial Determination (“ID”) finding that a violation of Section 337 occurred in connection with the importation into the U.S., sale for importation, or sale within the U.S. after importation of certain optoelectronic devices, components thereof, and products containing same by reason of infringement of claims 1, 2, 3, and 5 of U.S. Patent No. 5,359,447 (the ‘447 patent).  See our April 1, 2010 post for more details.

On May 13, 2010, the Commission issued notice of its determination not to review the ALJ’s final ID finding a violation of section 337, and requested written submissions on the issues of remedy, the public interest, and bonding.  See our May 13, 2010 post for more details.

The Commission determined that the appropriate form of relief is an LEO and a CDO.  The LEO prohibits the unlicensed entry of optoelectronic devices, components thereof, and products containing the same that are covered by one or more of claims 1, 2, 3 and 5 of the ‘447 patent, where the infringing optoelectronic devices, components thereof, and products containing the same are manufactured abroad by or on behalf of, or are imported by or on behalf of, Emcore, or any of its affiliated companies, parents, subsidiaries, licensees, contractors, or other related business entities, or successors or assigns.  The CDO prohibits Emcore from conducting the following activities in the United States: importing, selling, marketing, advertising, distributing, offering for sale, transferring (except for exportation), and soliciting U.S. agents or distributors for, optoelectronic devices, components thereof, and products containing the same that are covered by one or more of claims 1, 2, 3, and 5 of the ‘447 patent.  The Commission further determined that the public interest factors do not preclude issuance of these LEO or CDO orders, and that the bond during the Presidential review period should be set at three percent of the entered value of the covered products.

By way of background, the Complainant in this investigation is Humanscale Corporation (“Humanscale”) and the Respondents are CompX International, Inc. and Waterloo Furniture Components Limited d/b/a CompX Waterloo (collectively, “CompX”).

ALJ Luckern issued the ID finding a violation of Section 337 in connection with the importation into the U.S., sale for importation, and sale within the U.S. after importation of certain adjustable keyboard support systems and components thereof.  According to the ID, ALJ Luckern found that CompX did not violate Section 337 with respect to its “Wedge-Brake” products because they did not infringe asserted claims 7 and 34 of U.S. Patent No. 5,292,097 (the ‘097 patent).  However, ALJ Luckern found that CompX did violate Section 337 with respect to its “Brake-Shoe” products because they infringed claim 34 of the ‘097 patent.  The ALJ also found that there was no violation with respect to claim 7 because CompX had established by clear and convincing evidence that claim 7 is invalid for obviousness under 35 U.S.C. § 103.  ALJ Luckern further found that CompX had not established any intervening rights.  Finally, the ALJ found that Humanscale had proved the existence of a domestic industry with respect to the ‘097 patent.  See our March 15, 2010 post for more details.

On March 9, 2010, Humanscale, CompX, and the Commission Investigative Staff (“OUII”) each filed a petition for review of the ID.  On March 17, 2010, CompX filed a reply to Humanscale’s petition, Humanscale filed a consolidated reply to CompX’s and OUII’s petitions, and OUII filed a consolidated reply to Humanscale’s and CompX’s petitions.  On April 26, 2010, the ITC issued a notice determining to review in part the ID.  See our April 27, 2010 post for more details.

According to the July 9 notice, “the Commission has determined to reverse the ALJ’s determination that the respondents violated section 337.  The Commission finds the asserted claims are not infringed and are invalid.”

By way of background, this investigation follows litigation between Complainant Paice LLC (“Paice”) and Respondents Toyota Motor Corp., Toyota Motor North America, and Toyota Motor Sales, USA, Inc. (collectively, “Toyota”) in the U.S. District Court for the Eastern District of Texas in which certain Toyota hybrid vehicles were found to infringe U.S. Patent No. 5,343,970 (the ‘970 patent).  On April 2, 2010, the ITC reversed the ALJ’s summary determination that the doctrine of claim preclusion prevented Toyota from arguing noninfringement, invalidity or unenforceabilty of the asserted patent claims.  See our April 6, 2010 post for more details.  The April 2 opinion took no position, however, on the application of the doctrine of issue preclusion.  Subsequently, on remand from the ITC, ALJ Essex issued an Initial Determination (“ID”) granting Paice’s motion to bar, on the basis of issue preclusion, relitigation of the validity of the ‘970 patent.

The Opinion noted that the parties did not dispute that Paice made out a prima facie case for issue preclusion, or that ALJ Essex had correctly recited the law.  The parties disputed, rather, whether an exception to the issue preclusion doctrine was applicable.  Namely, whether an intervening change in the law, the decision in KSR International Co. v. Teleflex Inc., 550 U.S. 398 (2007), warranted the retrial of issues previously adjudged.  Both ALJ Essex and the ITC agreed that it did not.

In the Opinion, the ITC noted several reasons for the inapplicability of the exception.  In addition to the grounds cited in ALJ Essex’s ID, the ITC indicated that even if KSR constituted a change in the law for purposes of providing an exception to issue preclusion, Toyota did not raise any genuine issues of material fact in opposition of Paice’s motion, thus Toyota did not satisfy its burden to support an exception to issue preclusion.  Specifically, Toyota relied only on an erroneous jury instruction.  The ITC stated that a “mere error in a jury instruction, while enough in some cases to warrant a new trial on direct review, cannot suffice to enable collateral review of a final judgment.”  The Opinion provided that the jury instruction in question did not require an express motivation to combine and that the Supreme Court in KSR recognized that many pre-KSR decisions, with likely the same instruction as in Paice v. Toyota, applied the obviousness test correctly.

The Opinion also stated that Toyota knew or should have known to challenge the obviousness determination directly in its district court litigation, instead of collaterally in the ITC.  The ITC observed that numerous prominent briefs had been submitted to the Supreme Court urging the reversal of KSR preceding Toyota’s Rule 59 deadline.  According to the Opinion, under these circumstances, where a party has chosen not to preserve or pursue an appealable matter, it is unreasonable to argue that there has been manifest inequity.

By way of background, the Complainant in this investigation is Rambus Inc. (“Rambus”) and the Respondents are NVIDIA Corp. (“NVIDIA”); Asustek Computer Inc.; ASUS Computer International, Inc.; BFG Technologies, Inc.; Biostar Microtech (U.S.A.) Corp.; Biostar Microtech International Corp.; Diablotek Inc.; EVGA Corp.; G.B.T. Inc.; Giga-byte Technology Co., Ltd.; Hewlett-Packard Co.; MSI Computer Corp.; Micro-star International Co., Ltd.; Palit Multimedia Inc.; Palit Microsystems Ltd.; Pine Technology Holdings, Ltd.; and Sparkle Computer Co., Ltd (collectively, “Respondents”).  On January 22, 2010, ALJ Theodore R. Essex issued an Initial Determination (“ID”) finding a violation of Section 337 through the importation, sale for importation, or sale within the U.S. after importation of certain semiconductor chips having synchronous dynamic random access memory controllers and products containing same that infringe one or more claims of U.S. Patent Nos. 6,470,405; 6,591,353 and 7,287,109.  The ALJ further found no infringement of the asserted claims of U.S. Patent Nos. 7,177,998 and 7,210,016.  See our May 4, 2010 post for more details.

On March 25, 2010, the Commission issued a notice determining to review the ID in part.  See our March 26, 2010 post for more details.  On May 26, 2010, the Commission issued an additional notice requesting further briefing on the impact of a license between Rambus and Samsung on the ALJ’s finding and conclusions.  In particular, in the May 26 notice, the Commission stated that it “is particularly interested in briefing on the issue of patent exhaustion that Respondents raised in their petition for review and remedy submissions as it relates to the license.”

In the June 22 notice, the Commission notes that it received the additional briefing requested in the May 26 notice, but that in that additional briefing, “no party includes a discussion or citation to Fujifilm Corp. v. Benum [(2009-1487)], which was issued by the United States Court of Appeals for the Federal Circuit on May 27, 2010, which includes a discussion of patent exhaustion.”  Accordingly, the Commission determined “to allow additional briefing to discuss the relevance and effect of the Fujifilm case, if any, on the arguments and analysis provided in the briefing on patent exhaustion.”

The notice states that the briefing shall be limited to a single brief per party, shall be no more than 8 pages in length, and that “[a]ny briefing responsive to this notice shall be submitted by Friday, June 25, 2010.”

By way of background, the Complainants in this investigation are O2 Micro International Ltd. and O2 Micro Inc. (collectively, “O2 Micro”).  The Respondents are Monolithic Power Systems Inc. (“MPS”), ASUSTek Computer Inc. and ASUS Computer International America (collectively, “ASUS”), and Microsemi Corporation (“Microsemi”).  On April 19, 2010, ALJ Gildea issued the ID finding no violation of Section 337 by reason of infringement of the asserted claims of U.S. Patent No. 7,417,382 (the ‘382 patent).  In particular, ALJ Gildea determined, inter alia, that Microsemi’s LX1691 and LX1693 products infringe the asserted claims of the ‘382 patent but that O2 Micro has not satisfied the domestic industry requirement with respect to the ‘382 patent.  See our May 24, 2010 post for more details.

According to the June 18 notice, O2 Micro, MPS and ASUS, Microsemi, and the Commission Investigative Staff (“OUII”) each filed petitions for review of the ID on May 3, 2010.  On May 11, 2010, O2 Micro, MPS and ASUS, Microsemi, and OUII each filed responses to the petitions for review.

After examining the record of the investigation, including the ID, the petitions for review, and the responses to the petitions for review, the Commission determined to review the ID in part.  In particular, the Commission determined to review:  (1) the ID’s findings that Microsemi’s LX1691 and LX1693 products infringe the asserted claims of the ‘382 patent; and (2) the ID’s finding that O2 Micro has not satisfied the domestic industry requirement.

The notice states that upon review, the Commission determined to reverse ALJ Gildea’s findings that the LX1691 and LX1693 products infringe the asserted claims of the ‘382 patent but also to reverse the ALJ’s determination that O2 Micro has not satisfied the domestic industry requirement.  Accordingly, the Commission upheld ALJ Gildea’s ultimate finding of no violation of Section 337 — albeit on modified grounds — and terminated the investigation.  Lastly, the notice states that an “opinion will issue shortly.”