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ALJ Gildea

ALJ Gildea sets technology tutorial and markman argument in certain laser imageable lithographic printing plates 337-TA-636

By Eric Schweibenz
|
Feb
23
On February 20, 2009, ALJ E. James Gildea issued an order setting April 22, 2009 for a technology tutorial and Markman argument in the matter of Certain Laser Imageable Lithographic Printing Plates  (Inv. No. 337-TA-636).

Regarding technology tutorials, ALJ Gildea states in the order that “brief technology tutorials will be useful in setting the stage for the hearing.  Complainant and Respondents will be permitted 30 minutes per side to present the technology at issue in this Investigation.  Legal argument during said presentations will not be permitted.”
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ALJ Gildea denies respondents’ motion for summary determination in certain laser imageable lithographic printing plates 337-TA-636

By Eric Schweibenz
|
Mar
11
On March 9, 2009, ALJ E. James Gildea issued the public version of his February 23, 2009 Order No. 22 in Certain Laser Imageable Lithographic Printing Plates (337-TA-636).  In the Order, ALJ Gildea denied respondents VIM Technologies, Ltd., Hanita Coatings RCA, Ltd., AteCe Canada, Guaranteed Service & Supplies, Inc., Recognition Systems, Inc., and Spicers Paper, Inc.’s (Respondents’) motion for summary determination that (i) claims 1 and 27 of U.S. Patent No. 5,339,737 are invalid as anticipated over a prior art reference by Nechiporenko et al.; (ii) claim 10 of the ‘737 patent is invalid as obvious over the Nechiporenko reference in combination with U.S. Patent No. 4,132,168; (iii) the accused lithographic printing plates do not infringe claims 1, 10, and 27 of the ‘737 patent; and (iv) the accused plates do not infringe claims 20, 21, and 23 of U.S. Patent No. 5,487,338.

Complainant Presstek, Inc. and the Staff opposed Respondents’ motion.  They argued that there are disputed issues of fact relating to what is actually disclosed and enabled by the Nechiporenko reference, and that therefore summary determination of invalidity of any claims as anticipated by Nechiporenko or obvious over Nechiporenko (in combination with the ‘168 patent) would be inappropriate.  Further, they argued that since Respondents’ noninfringement position relied on disputed claim terms that still required construction, summary determination on that issue was premature.  The Staff also argued that there was a disputed issue of fact relating to the operation of the accused lithographic printing plates, which also made summary determination of noninfringement inappropriate.
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ALJ Gildea Issues Order Regarding The Admissibility Of Certain Exhibits Without A Sponsoring Witness In Certain Laser Imageable Lithographic Printing Plates (337-TA-636)

By Eric Schweibenz
|
Apr
01
On March 30, 2009, ALJ E. James Gildea issued Order No. 26 in Certain Laser Imageable Lithographic Printing Plates (337-TA-636).  In the Order, ALJ Gildea granted in part respondents VIM Technologies, Ltd., Hanita Coatings RCA, Ltd., AteCe Canada, Guaranteed Service & Supplies, Inc., Recognition Systems, Inc., and Spicers Paper, Inc.’s (“Respondents”) requests for receipt of certain exhibits without a sponsoring witness, but denied the majority of the requests.

According to the Order, Respondents requested, pursuant to Ground Rule 9.8.12, that the ALJ receive several exhibits into evidence without a sponsoring witness.  Respondents argued that “there is good cause to admit these exhibits into evidence because they are relevant, material, reliable and non-controversial, and their admission would streamline the hearing process without prejudicing any party to this Investigation.”
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ALJ Gildea Grants in Part Respondents’ Joint Motion to Compel in Certain Coaxial Cable Connectors and Components (337-TA-650)

By Eric Schweibenz
|
Apr
03
On April 2, 2009, ALJ E. James Gildea issued Order No. 17 granting in part Respondents’ joint motion to compel Complainant to fully respond to specific discovery requests in Certain Coaxial Cable Connectors and Components Thereof and Products Containing Same (Inv. No. 337-TA-650).

According to the order, Respondents Fu Ching Technical Industry Co. Ltd.  and Gem Electronics, Inc. (“Respondents”) moved to compel Complainant John Mezzalingua Associates, Inc. d/b/a PPC, Inc. (“PPC”) to fully respond to an interrogatory and a request for admission, and produce documents responsive to a request for production, relating to whether representatives of PPC had separated the locking member of Respondents’ accused products from the connector body and whether the locking member has a radially protruding shoulder circumscribing the member at a first position.  Respondents argued that PPC waived all privilege with respect to separation of the locking member of the accused products from the connector body because PPC disclosed that its counsel had accomplished such a separation in 2004.
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ALJ Gildea Denies Motion to Preclude Expert Testing And All Related Documents And Testimony In Certain Laser Imageable Lithographic Printing Plates (337-TA-636)

By Eric Schweibenz
|
Apr
08
On April 6, 2009, ALJ E. James Gildea issued the public version of Order No. 25 in Certain Laser Imageable Lithographic Printing Plates (337-TA-636).  In the Order, ALJ Gildea denied respondents VIM Technologies, Ltd., Hanita Coatings RCA, Ltd., AteCe Canada, Guaranteed Service & Supplies, Inc., Recognition Systems, Inc., and Spicers Paper, Inc.’s (“Respondents”) motion to preclude complainant Presstek, Inc.’s (“Presstek”) 2009 VIM plate testing conducted by Presstek’s expert and all documents, testimony and arguments relating thereto (“Respondents’ Motion”).

According to the Order, in a previous ruling issued by ALJ Essex, Respondents were permitted to substitute Dr. Yoash Carmi (an employee of Respondent Hanita Coatings RCA, Ltd.) for their previously identified expert (Dr. Richard Goodman), with the understanding that Dr. Carmi’s opinions would be limited to those set forth in Dr. Goodman’s previously submitted expert reports.  The same previous ruling by ALJ Essex permitted Presstek to introduce into evidence Dr. Goodman’s deposition testimony and also permitted Presstek to supplement its expert reports to rebut any new theories advanced by Dr. Carmi.
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ALJ Gildea Denies Respondents’ Motion For Summary Determination In Certain Coaxial Cable Connectors (337-TA-650)

By Eric Schweibenz
|
Apr
21
On April 17, 2009, ALJ E. James Gildea issued the public version of Order No. 19 (dated April 10, 2009) in Certain Coaxial Cable Connectors and Components Thereof and Products Containing Same (337-TA-650).  ALJ Gildea denied Fu Ching Technical Industry Co., Ltd.’s and Gem Electronics, Inc.’s  (“Respondents”) joint motion for summary determination that (i) they do not infringe certain claims of U.S. Patent No. 5,470, 257 (the “‘257 patent”), (ii) the ‘257 patent is invalid as anticipated, obvious or indefinite, and (iii) Complainant John Mezzalingua Associates, Inc. d/b/a PPC, Inc. (“PPC”) is barred by laches from pursuing the Investigation against Respondents.

In the order, ALJ Gildea determined that a finding of non-infringement was inappropriate because genuine material issues of fact remain relating to at least (i) whether the locking member of Respondents’ accused products is separable from the connector body and (ii) whether a radially protruding circular shoulder is present on Respondents’ accused products at a first position.
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ALJ Gildea Rules On PPC’s Motion for Summary Determination in Certain Coaxial Cable Connectors (337-TA-650)

By Eric Schweibenz
|
Apr
21
On April 17, 2009, ALJ E. James Gildea issued the public version of Order No. 18 (dated April 6, 2009), the initial determination granting in part the motion for summary determination filed by Complainant John Mezzalingua Associates, Inc. d/b/a PPC, Inc. (“PPC”) in Certain Coaxial Cable Connectors and Components Thereof and Products Containing Same (Inv. No. 337-TA-650).

PPC moved for summary determination on importation, infringement, domestic industry, and for a general exclusion order.  With respect to infringement, PPC moved for summary determination that products of Respondents Fu Ching Technical Industry Co. Ltd.  and Gem Electronics, Inc. (“Respondents”) infringed certain claims of the patent-in-suit “which is valid and enforceable.”  Respondents opposed and raised a number of theories regarding invalidity and non-infringement, but did not dispute PPC’s assertions relating to the economic prong of the domestic industry requirement and importation of the accused products.  The Commission Investigative Staff filed a response in support of a finding of summary determination for importation and economic prong, but argued there were genuine issues of material fact and that PPC had failed to meet its burden which would preclude summary determination on the issues of infringement and technical prong.
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ALJ Gildea Denies Motion to Disqualify Counsel in Certain Cold Cathode Fluorescent Lamp (“CCFL”) Inverter Circuits (337-TA-666)

By Eric Schweibenz
|
May
05
On April 29, 2009, ALJ E. James Gildea issued the public version of Order No. 7 (dated April 17, 2009) denying a motion by Complainants 02 Micro International Ltd. and 02 Micro Inc. to disqualify counsel for Respondents LG Electronics Inc., LG Electronics USA, Inc., LG Display Co., Ltd., and LG Display America, Inc. in Certain Cold Cathode Fluorescent Lamp (“CCFL”) Inverter Circuits and Products Containing the Same (337-TA-666).

O2 Micro argued that Morgan Lewis & Bockius LLP (“MLB”), the firm representing LG, had two conflicts of interest which should prevent it from representing LG in the investigation: (1) prior to joining LG’s law firm, MLB attorney Daniel Johnson had been lead counsel for O2 Micro in a lawsuit against Monolithic Power Systems (the “MPS Litigation”) involving a patent in the same family as the patent at issue in the Investigation, and (2) MLB represented O2 Micro in the MPS Litigation after Mr. Johnson joined the firm.  O2 Micro argued that MLB’s representation of LG violated loyalties and ethical obligations owed to O2 Micro and that confidences and secrets O2 Micro might have conveyed to Mr. Johnson and MLB during the MPS Litigation might give LG an unfair advantage.
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ALJ Gildea Issues Order Setting Technology and Markman Tutorials In Certain Coaxial Cable Connectors (337-TA-650)

By Eric Schweibenz
|
May
06
On April 30, 2009, Administrative Law Judge E. James Gildea issued Order No. 20 setting technology and Markman tutorials in Certain Coaxial Cable Connectors and Components Thereof and Products Containing the Same (Inv. No. 337-TA-650).

According to the Order, ALJ Gildea determined that “brief technology tutorials will be useful in setting the stage for the hearing.”  ALJ Gildea permitted the private parties 30 minutes per side and indicated that      “[l]egal argument during said presentations will not be permitted.”
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Update Regarding Certain Wireless Communications Devices (337-TA-675)

By Eric Schweibenz
|
May
12
Further to our April 30 post, on May 1, 2009, ALJ E. James Gildea issued Order No. 2 – Notice of Ground Rules and Setting Target Date in Certain Wireless Communications Devices and Components Thereof (337-TA-675).

According to the Order, ALJ Gildea set August 27, 2010 as the target date for completion of the investigation (which is 16 months after institution of the investigation).  Also, any final initial determination is due to be issued no later than April 27, 2010. 
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ALJ Gildea Denies Motion For Summary Determination Of Non-Infringement In Certain Active Comfort Footwear (337-TA-660)

By Eric Schweibenz
|
Jun
12
On June 10, 2009, ALJ E. James Gildea issued the public version of Order No. 8 (dated June 1, 2009) in Certain Active Comfort Footwear (Inv. No. 337-TA-660).  In the Order, ALJ Gildea denied Respondent RYN Korea Co. Ltd.’s (“RYN”) motion for summary determination of non-infringement of U.S. Patent No. 6,341,432 (the “‘432 patent”).

According to the Order, RYN argued that certain of its shoe products (“Accused Shoes”) did not literally infringe the ‘432 patent because the Accused Shoes did not “have the claimed structure for ‘recess (13)’ and ‘material element (25)’” limitations.  RYN also argued that Complainants Masai Marketing & Trading AG and Masai USA Corp. (collectively, “Masai”) were estopped from asserting infringement under the doctrine of equivalents because of certain claim amendments Masai made during prosecution of the patent-in-suit.  In opposition, Masai asserted that RYN’s motion was insufficient because it did not “provide adequate factual evidence of the level of skill in the relevant art” and that there were genuine issues of material fact as to whether the Accused Shoes had a “material element” and a “recess ‘between’ the sole body and covering” as claimed in the patent-in-suit.  Further, Masai argued that RYN was incorrect in asserting that Masai alleged infringement under the doctrine of equivalents.  The Commission Investigative Staff (“Staff”) opposed RYN’s motion for summary determination of non-infringement arguing that Masai did not assert infringement under the doctrine of equivalents and that RYN’s non-infringement arguments with respect to literal infringement were not based on factual evidence but rather, on conclusory expert statements.  Staff also argued that there was “a genuine issue of material fact as to the structure of the sole and location of the ‘tunnel’ or ‘recess’ in the Accused Shoes.”
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Update Regarding Certain Wireless Communications Devices And Components Thereof (337-TA-675)

By Eric Schweibenz
|
Jun
15
Further to our May 12 post, on June 11, 2009, ALJ E. James Gildea issued Order No. 7: Setting Procedural Schedule in Certain Wireless Communications Devices and Components Thereof (337-TA-675).

According to the Order, the evidentiary hearing in this matter will commence on January 19, 2010.
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ALJ Gildea Issues Initial Determination Finding Violation Of Section 337 In Certain Laser Imageable Lithographic Printing Plates (337-TA-636)

By Eric Schweibenz
|
Jul
28
On July 24, 2009, ALJ E. James Gildea issued a notice regarding his Final Initial Determination and Recommended Determination on Remedy and Bond in Certain Laser Imageable Lithographic Printing Plates (Inv. No. 337-TA-636). 

The Complainant in the 636 investigation is Presstek, Inc., and Respondents are VIM Technologies, Inc., Hanita Coatings RCA, Ltd., AteCe Canada, Guaranteed Service & Supplies, Inc., Recognition Systems, Inc., and Spicers Paper, Inc.  According to the notice, ALJ Gildea held that a violation of section 337 occurred in the importation into the U.S., the sale for importation, or the sale within the U.S. after importation of certain laser imageable lithographic printing plates by reason of infringement of one or more of claims 1, 10, and 27 of U.S. Patent No. 5,339,737, and one or more of claims 20, 21, and 23 of U.S. Patent No. 5,487,338.
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ALJ Gildea Denies Motion To Strike Experts’ Hearing Testimony In Certain Laser Imageable Lithographic Printing Plates (337-TA-636)

By Eric Schweibenz
|
Aug
04
On August 3, 2009, ALJ E. James Gildea issued the public version of Order No. 30 (dated July 24, 2009) in Certain Laser Imageable Lithographic Printing Plates (Inv. No. 337-TA-636).  In the Order, ALJ Gildea denied a motion to strike portions of the hearing testimony of two experts for Complainant Presstek, Inc. (“Presstek”) filed by Respondents VIM Technologies, Ltd., Hanita Coatings RCA, Ltd., AteCe Canada, Guaranteed Service & Supplies, Inc., Recognition Systems, Inc., and Spicers Paper, Inc. (collectively, “Respondents”).

In their motion, Respondents sought to strike the hearing testimony of Presstek experts Charles W. Magee, Ph.D. (“Dr. Magee”) and Steven A. Carlson, Ph.D. (“Dr. Carlson”) regarding “the relative speeds at which light travels through the ablative/absorptive layer and at which ablation occurs” and “reflection with respect to the substrate of the accused VIM plates.”  According to the Order, Presstek opposed the motion and the Commission Investigative Staff filed a response “supporting Respondents’ motion only with respect to striking portions of Dr. Magee’s hearing testimony.”
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ITC Institutes Investigation Regarding Certain Collaborative System Products (337-TA-682)

By Eric Schweibenz
|
Aug
04
On August 4, 2009, the U.S. International Trade Commission issued a press release announcing that it voted to institute an investigation of Certain Collaborative System Products and Components Thereof (Inv. No. 337-TA-682).

The investigation is based on a July 2, 2009 complaint filed by eInstruction Corporation of Denton, Texas.  As we explained in our July 7 post, the complaint alleges violations of Section 337 in the importation into the U.S. and sale of certain products using collaborative system technology and components thereof that infringe U.S. Patent No. 6,390,673.
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Law Firm’s Motion to Intervene and to Preclude Disclosure of Confidential Business Information Is Denied in Certain CCFL Inverter Circuits (337-TA-666)

By Eric Schweibenz
|
Aug
07
On August 6, 2009, ALJ E. James Gildea issued the public version of Order No. 15 (dated July 17, 2009) denying a motion by Finnegan, Henderson, Farabow, Garrett & Dunner LLP (“Finnegan”) to intervene for the purpose of enforcing the terms of a retainer agreement in Certain Cold Cathode Fluorescent Lamp (“CCFL”) Inverter Circuits and Products Containing the Same (Inv. No. 337-TA-666).  The retainer agreement at issue is between Finnegan and Melvin Ray Mercer and was entered into on behalf of Finnegan’s clients in a prior litigation, Sony Corporation, Sony EMCS Corporation, and Sony Electronic Inc. (collectively, “Sony”).

Finnegan represents respondents Monolithic Power Systems, Inc., ASUSTeK Computer Inc., and ASUS Computer International America (collectively, “the MPS and ASUS respondents”) in the investigation.  Finnegan argued that Mercer has a conflict of interest that prevents him from serving as a technical consultant to complainants 02 Micro International Ltd. and 02 Micro Inc. (collectively, “O2 Micro”).  Mercer was retained by Finnegan to assist the firm in defending Sony in a patent infringement lawsuit in the Eastern District of Texas regarding three patents that, although different than the patent asserted in the investigation, share the same specification with the asserted patent.  Finnegan argued that Mercer was privy to Finnegan’s work product that is potentially applicable to defenses that MPS and ASUS may assert in this investigation, and that O2 Micro was seeking to gain an unfair advantage by gaining access to that work product.
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ALJ Gildea Issues Public Version of Initial Determination in Certain Laser Imageable Lithographic Printing Plates (337-TA-636) Finding Violation of Section 337

By Eric Schweibenz
|
Aug
13
Further to our July 28 post, on August 7, 2009, ALJ E. James Gildea issued the corrected public version of his Initial and Recommended Determinations (“ID”) in Certain Laser Imageable Lithographic Printing Plates (Inv. No. 337-TA-636).  In this investigation, the Complainant is Presstek, Inc. (“Presstek”) and the Respondents are VIM Technologies, Ltd. (“VIM”), Hanita Coatings RCA, Ltd. (“Hanita”), Guaranteed Services & Supplies, Inc. (“Guaranteed”), AteCe Canada (“AteCe”), Spicers Paper, Inc. (“Spicers”), and Recognition Systems, Inc. (“Recognition”) (collectively, “Respondents”).

The patents-in-suit are U.S. Patent Nos. 5,339,737 (the “‘737 patent”) and 4,487,338 (the “‘338 patent”), which are both generally directed to lithographic printing plates suitable for imaging with low-to-moderate power levels of near-infrared laser radiation.  In the 105-page ID, ALJ Gildea held that a violation of Section 337 occurred in the importation into the U.S., the sale for importation, or the sale within the U.S. after importation of certain laser imageable lithographic printing plates (the “accused products”) by reason of infringement of one or more of Claims 1, 10, and 27 of the ‘737 patent, and one or more of Claims 20, 21, and 23 of the ‘338 patent.  Further, ALJ Gildea found that a domestic industry exists with respect to the ‘737 and ‘338 patents.
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ALJ Gildea Continues His Practice Of Setting Technology And Markman Tutorials In CCFL Inverter Circuits (337-TA-666)

By Eric Schweibenz
|
Aug
19
On August 17, 2009, Administrative Law Judge E. James Gildea issued Order No. 20 in Certain Cold Cathode Fluorescent Lamp (“CCFL”) Inverter Circuits and Products Containing the Same (Inv. No. 337-TA-666).

In the Order, ALJ Gildea determined that “technology tutorials will be useful in setting the stage for the hearing.”  ALJ Gildea permitted the private parties 60 minutes per side and indicated that “[l]egal argument during said presentations will not be permitted.”
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ALJ Gildea Issues Public Version of Order Granting Motion to Compel Documents in CCFL Inverter Circuits (337-TA-666)

By Eric Schweibenz
|
Aug
19
On August 17, ALJ E. James Gildea issued the public version of Order No. 16 (dated August 4, 2009) granting Complainants O2 Micro International Ltd. and O2 Micro Inc.’s motion to compel documents regarding sales information and possibly infringing products from Respondents LG Electronics Inc. and LG Electronics USA in Certain Cold Cathode Fluorescent Lamp (“CCFL”) Inverter Circuit and Products Containing the Same (Inv. No. 337-TA-666).

O2 sought the underlying sales records from which LG had produced sales summaries.  O2 also complained that LG had only produced technical, sales and marketing information for products incorporating CCFL inverter controllers that were manufactured by other Respondents, while the discovery requests sought information on LG products with CCFL inverter controllers manufactured by any entity.
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ALJ Gildea Orders Production Of Allegedly Privileged Document Despite Parties’ “Claw-Back” Agreement In CCFL Inverter Circuits (337-TA-666)

By Eric Schweibenz
|
Aug
19
On August 18, 2009, Administrative Law Judge E. James Gildea issued the public version of Order No. 17 (dated August 5, 2009) in Certain Cold Cathode Fluorescent Lamp (“CCFL”) Inverter Circuits and Products Containing the Same (Inv. No. 337-TA-666).  In the Order, ALJ Gildea granted Complainants O2 Micro International Ltd and O2 Micro Inc.’s (collectively, “O2 Micro”) motion to compel Respondent Monolithic Power Systems, Inc. (“MPS”) to re-produce a document that MPS had “clawed back” as privileged.

In support of its motion, O2 Micro argued that (1) MPS did not demonstrate the disputed document was privileged; and (2) even if the disputed document was privileged, the privilege was waived when MPS produced such document in prior litigation between the parties.  MPS, on the other hand, argued that (1) the disputed document was privileged and related to pending litigation in Taiwan; (2) the disputed document was inadvertently produced in the prior litigation and the instant investigation “because the prior production was re-produced en masse”; and (3) privilege was not waived because counsel for MPS promptly “clawed back” the disputed document during a June 2009 deposition and followed it up with notification in writing.  For its part, the Commission Investigative Staff argued that (1) MPS waived any privilege to the disputed document in light of the inadvertent production in the prior litigation; and (2) the ALJ should perform an in camera review of the disputed document to confirm that it is privileged.
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The opinions, commentary and characterizations provided to this online forum by the authors and moderators are provided for encouraging discussion, thought and debate on important ITC issues. These postings are in no way representative of the opinions of the Oblon firm, or its clients, but rather the personal views of the individual authors.