By way of background, on July 16, 2010, ALJ Charneski determined that there was no violation of Section 337 in this investigation.  More specifically, he determined that none of the accused products practiced U.S. Patent Nos. 7,016,539 (the ‘539 patent) and 7,065,262 (the ‘262 patent), certain claims of the ‘262 patent were invalid as anticipated, and all asserted claims of the ‘262 and ‘539 patents were invalid for failure to claim patent-eligible subject matter.  See our July 16, 2010 post for more details.

In the RD, ALJ Charneski determined that in the event the Commission finds that one or more respondents have committed a violation of Section 337, it was undisputed that a limited exclusion order should issue.  However, to facilitate such an order’s proper enforcement, ALJ Charneski recommended using a certification provision to permit parties to certify that products with the pertinent software contain algorithms outside the scope of the exclusion order.  ALJ Charneski further recommended that a cease and desist order issue only against Respondent MVTec LLC, should it be found to have committed a violation, since only MVTEC LLC was shown to maintain a commercially significant product inventory in the United States.  Finally, according to the RD, in view of Complainants’ lack of evidence concerning the appropriate amount of any bond, ALJ Charneski recommended that no bond be required if the Commission issues a limited exclusion order.

By way of background, on December 17, 2009, ALJ Charneski determined that there was a violation of Section 337 in connection with the importation into the United States, the sale for importation, or the sale within the United States after importation, of certain Samsung mobile telephones or wireless communication devices featuring digital cameras, or components thereof, that infringe certain claims of U.S. Patent Nos. 5,493,335 and 6,292,218.  See our December 21, 2009 post for more details.

In the RD, ALJ Charneski recommended that the Commission enter a limited exclusion order against the infringing Samsung products.  Further ALJ Charneski determined that “[c]ontrary to respondents’ arguments, Samsung mobile telephones are not downstream products” since they were “expressly named in the notice of investigation.”  According to the RD, ALJ Charneski also recommended that the Commission issue a cease and desist order.  Regarding the amount of bond to be required of respondents during the Presidential review period, the exact amount recommended by ALJ Charneski was redacted from the public version.

By way of background, the Complainant in this investigation is Amsted Industries Inc. (“Amsted”).  The Respondents are Tianrui Group Co. Ltd, Tianrui Group Foundry Co. Ltd, Standard Car Truck Company, Inc., and Barber Tianrui Railway Supply (collectively, “Respondents”).  On October 16, 2009, ALJ Charneski issued an Initial Determination (“ID”) finding that a violation of Section 337 had occurred in the importation into the U.S., the sale for importation, and the sale within the U.S. after importation of certain cast steel railway wheels or products containing the same by reason of trade secret misappropriation.  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.

In the RD, ALJ Charneski recommended the issuance of a limited exclusion order and cease and desist orders with respect to any respondent found to be in violation of Section 337.  Regarding Amsted’s request for the issuance of a general exclusion order, ALJ Charneski determined that Amsted waived the opportunity to obtain such an order since Respondents and the Commission Investigative Staff “were not given adequate prior notice that they would need to address the issues relating to a general exclusion order.”  ALJ Charneski further determined that “even if this argument were timely raised, the evidence does not support the issuance of a general exclusion order.”  With respect to the duration of the limited exclusion order, ALJ Charneski found that “the record supports a duration of 10 years for any limited exclusion order.”  Regarding the amount of bond to be required of Respondents during the Presidential review period, the exact amount recommended by ALJ Charneski was redacted from the public version.

By way of background, the Complainant in this investigation is General Electric Co. (“GE”) and the Respondents are Mitsubishi Heavy Industries, Ltd. (“MHI”), Mitsubishi Heavy Industries America, Inc. (“MHIA”), and Mitsubishi Power System, Inc. (“MPSA”) (collectively, “Mitsubishi”).  On August 7, 2009, ALJ Charneski issued the initial determination in this investigation, finding that a violation of Section 337 had occurred in the importation into the U.S., the sale for importation, and the sale within the U.S. after importation of certain variable speed wind turbines and components thereof.  See our August 10 and October 8 posts for more details about the current status of this investigation.

Regarding remedy, ALJ Charneski recommended that if a violation of Section 337 is found, a limited exclusion order should issue that is directed to MHI and MPSA in view of these parties’ stipulation “that they have sold for importation, imported and, or, sold after importation into the United States, the accused Mitsubishi turbines.”  As to whether a cease and desist order should issue in this investigation, ALJ Charneski rejected GE’s request since it was not raised by GE in its prehearing statement, but rather was raised for the first time in GE’s post-hearing brief.  ALJ Charneski thus determined that “the issue of whether a cease and desist order should issue here was untimely raised, and the request must be rejected.”

With respect to bond, ALJ Charneski noted that “no party relies on price information with respect to the issue of bond” and “there is inadequate evidence to permit an alternate method of bond calculation, such as the calculation of a reasonable royalty rate.”  According to the RD, while the “Mitsubishi respondents have calculated the midpoint dollar amount of the royalties required by various GE licenses,” it was “not established that the licenses used in the calculation are comparable to the extent that the midpoint accurately represents a reasonable royalty rate.”  Accordingly, ALJ Charneski recommended that a 100% bond be required of Mitsubishi during the Presidential review period.