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ALJ Luckern Issues Initial Determination Finding No Violation Of Section 337 In Certain 3G Mobile Handsets (337-TA-613)

By Eric Schweibenz
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Aug
17
On August 14, 2009, Chief ALJ Paul J. Luckern issued a notice regarding his Final Initial and Recommended Determinations (“ID”) in Certain 3G Mobile Handsets and Components (Inv. No. 337-TA-613).

The Complainants in this investigation are InterDigital Communications, LLC and InterDigital Technology Corp. and the Respondents are Nokia Inc. and Nokia Corporation.  According to the notice, ALJ Luckern held that no violation of Section 337 had occurred in connection with the importation into the U.S., the sale for importation, or the sale within the U.S. after importation of certain 3G mobile handsets and components.  Specifically, according to the notice, ALJ Luckern determined that the asserted claims of the ‘004, ‘966, ‘847, and ‘579 patents are not infringed.  He also found that the claims were not invalid and that a domestic industry exists with respect to the asserted 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
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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 Rogers Issues Initial Determination Granting Philip’s Motion For Termination Of Investigation In Certain High-Brightness Light-Emitting Diodes (337-TA-556)

By Eric Schweibenz
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Aug
19
On August 18, 2009, ALJ Robert K. Rogers, Jr. issued Order No. 5 in Certain High-Brightness Light-Emitting Diodes and Products Containing Same (Inv. No. 337-TA-556).  In the Order, ALJ Rogers granted Complainant Philips Lumileds Lighting Company, LLC’s (“Philips Lumileds”) motion to withdraw its complaint and terminate the investigation in its entirety.

By way of background, on May 24, 2009, the Federal Circuit vacated the Commission’s limited exclusion order and remanded the case to the Commission to allow Respondent Epistar Corp. (“Epistar”) to challenge the validity of U.S. Patent No. 5,008,718 (the “‘718 patent”).  See our May 26, July 28, and July 29 posts for more information.  According to the Order, the ‘718 patent will expire on December 18, 2009, and “Philips Lumileds has been advised that it will not be able to complete the entire remand proceeding prior to the expiration of the ‘718 patent.”  Accordingly, Philips Lumileds moved for termination of the investigation while noting “that it does not waive any rights in its currently-pending lawsuit against Epistar in the United States District Court for the Northern District of California.”
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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
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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
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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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Update Regarding Certain Machine Vision Software And Systems (337-TA-680)

By Eric Schweibenz
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Aug
21
Further to our July 14 post, on August 21, 2009, ALJ Carl C. Charneski issued Order No. 6 in Certain Machine Vision Software, Machine Vision Systems, and Products Containing Same (Inv. No. 337-TA-680).

According to the Order, ALJ Charneski set November 16, 2010 as the target date for completion of this investigation (which is 16 months after institution of the investigation).  ALJ Charneski further indicated that the initial determination on violation shall be due on July 16, 2010.
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Update Regarding Certain Machine Vision Software (337-TA-680)

By Eric Schweibenz
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Aug
25
Further to our July 14 and August 21 posts, on August 24, 2009, ALJ Carl C. Charneski issued Order No. 8: Setting Procedural Schedule in Certain Machine Vision Software, Machine Vision Systems, and Products Containing Same (Inv. No. 337-TA-680).

According to the Order, ALJ Charneski set May 3-12, 2010 for the evidentiary hearing in this matter.
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ALJ Luckern Agrees To Extend Target Date On Eve Of Final Initial Determination In Certain Video Game Machines (337-TA-658)

By Eric Schweibenz
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Aug
25
On August 21, 2009, Chief ALJ Paul J. Luckern issued Order No. 43 extending the target date to February 23, 2010 in Certain Video Game Machines And Related Three-Dimensional Pointing Devices (Inv. No. 337-TA-658).

According to the Order, on August 21, 2009, Complainant Hillcrest Laboratories, Inc. (“Hillcrest”) and Respondents Nintendo Co., Ltd. and Nintendo of America, Inc. (collectively, “Nintendo”) moved to stay the procedural schedule, including the date for issuance of the final Initial Determination, and to extend the target date two months to February 23, 2010.  In support of their motion, Hillcrest and Nintendo explained that the private parties had reached settlement and intended to file a joint motion to terminate the investigation based on a settlement in the near future.
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ALJ Luckern Rules On Motion To Quash Subpoena In Certain Adjustable Keyboard Support Systems (337-TA-670)

By Eric Schweibenz
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Sep
01
On August 27, 2009, Chief ALJ Paul J. Luckern issued the public version of Order No. 11 (dated August 26) in Certain Adjustable Keyboard Support Systems and Components Thereof(Inv. No. 337-TA-670) relating to Complainant Humanscale Corp.’s (“Humanscale”) motion to quash third party subpoenas to Humanscale’s attorneys, Alston & Byrd LLP (“A&B”) and Bryan Cave LLP (“Cave”).  In the Order, ALJ Luckern quashed the subpoena to Cave and ordered A&B to either comply with the subpoena or file a motion to quash.

In support of its motion to quash, Humanscale argued that the requested documents were privileged and any non-privileged documents are either not relevant to the issues in the investigation or already in the possession of Respondents CompX International, Inc. and Waterloo Furniture Corportation Ltd. (collectively, “CompX”).  In opposition, CompX argued that (1) Humanscale failed to meet and confer prior to filing its motion to quash; (2) CompX did not want any Humanscale documents properly protected by privilege; (3) Humanscale had no standing to object to the third party subpoenas; and (4) the requested documents were relevant to the instant investigation.  For its part, the Commission Investigative Staff supported Humanscale’s motion to quash arguing that (1) the requested documents were already in the possession of CompX or identified on a privilege log; and (2) the scope of the subject document requests were overly broad and went beyond the scope of the investigation.  Third party Cave filed a response to and notice of joinder to Humanscale’s motion to quash.
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Update Regarding Certain MLC Flash Memory Devices (337-TA-683)

By Eric Schweibenz
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Sep
01
Further to our August 25 post, on August 27, 2009, ALJ Theodore R. Essex issued Order No. 1: Protective Order and Order No. 2: Notice of Ground Rules and Order Setting Date for Submission of Discovery Statements and Date for Preliminary Conference in Certain MLC Flash Memory Devices and Products Containing Same (Inv. No. 337-TA-683). 

In Order No. 2, ALJ Essex directed the parties to submit a discovery statement on or before September 17, 2009.  Also, ALJ Essex scheduled a preliminary conference for October 6, 2009.
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ALJ Essex Denies Third Party Motion For Access To Hearing Testimony Of Tessera’s Expert In Certain Semiconductor Chips (337-TA-630)

By Eric Schweibenz
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Sep
01
On August 28, 2009, ALJ Theodore R. Essex issued Order No. 47 in Certain Semiconductor Chips with Minimized Chip Package Size and Products Containing Same (Inv. No. 337-TA-630).  In the Order, ALJ Essex denied a motion brought by third party Qualcomm Incorporated (“Qualcomm”) for an order granting access to a non-confidential version of the evidentiary hearing testimony of Tessera, Inc.’s (“Tessera”) infringement expert, Dr. Qu.

In support of its motion, Qualcomm argued that the First Amendment of the U.S. Constitution guarantees members of the public the right to access non-confidential records of judicial and administrative proceedings in order to “ensure transparency and consistency in Commission adjudications.”
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ALJ Essex Issues Initial Determination Finding No Violation Of Section 337 In Certain Semiconductor Chips (337-TA-630)

By Eric Schweibenz
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Sep
01
On August 28, 2009, ALJ Theodore R. Essex issued a notice regarding his Final Initial and Recommended Determinations (“ID”) in Certain Semiconductor Chips With Minimized Chip Package Size and Products Containing Same (Inv. No. 337-TA-630).

The Complainant in this investigation is Tessera, Inc. and the Respondents are Acer, Inc., Acer America Corporation, Nanya Technology Corporation, Nanya Technology Corporation U.S.A., Powerchip Semiconductor Corporation, Elpida Memory, Inc., Elpida Memory (USA) Inc., ProMOS Technologies, Inc., Kingston Technology Co., Ltd., Ramaxel Technology Ltd., Centon Electronics, Inc., Smart Modular Technologies, Inc., TwinMOS Technologies Inc., and TwinMOS Technologies USA Inc.
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ALJ Gildea Denies Third Parties’ Motion To Quash Subpoena And For Sanctions In Certain CCFL Inverter Circuits (337-TA-666)

By Eric Schweibenz
|
Sep
02
On September 1, 2009, ALJ E. James Gildea issued the public version of Order No. 21 (dated August 18, 2009) in Certain Cold Cathode Fluorescent Lamp (“CCFL”) Inverter Circuits and Products Containing Same (Inv. No. 337-TA-666).  In the Order, ALJ Gildea denied a motion brought by third parties WorldGate Communications, Inc. and Senior Vice President of Engineering for WorldGate, Whitney Blackmon (collectively, “WorldGate”), seeking to quash or limit certain subpoenas served by Respondent Monolithic Power Systems, Inc. (“MPS”), and for attorneys’ fees and costs.

In support of its motion, WorldGate argued that the document and deposition subpoena directed to WorldGate (1) failed to provide sufficient time to comply; (2) exceeded the scope of permissible discovery since the subpoenas sought privileged information; (3) were overly broad and unduly burdensome; and (4) sought documents that could be obtained from parties in the Investigation.  The Commission Investigative Staff opposed WorldGate’s motion arguing that (1) it was not unreasonable for WorldGate to create a privilege log in connection with its response to MPS’ subpoenas; (2) the parties and WorldGate should work together to schedule a deposition for Mr. Blackmon and agree on a reasonable scope of searches for further document production; (3) MPS should assume the reasonable costs for any unusually burdensome document searches; and (4) WorldGate’s request for sanctions should be denied.  For its part, MPS opposed WorldGate’s motion arguing that (1) discovery from WorldGate was necessary since, in response to a subpoena from Complainants, WorldGate produced an unsolicited declaration from Mr. Blackmon relating to the functionality of an accused product; (2) its discovery requests relating to WorldGate are limited to the Blackmon Declaration and thus are not overly broad; (3) WorldGate’s prior production of materials was limited to a search for e-mail, and did not include paper documents; and (4) MPS’s discovery requests relating to WorldGate were relevant to the issue of potential patent misuse.
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ALJ Gildea Grants Motion to Terminate the Investigation with Respect to LG in Certain CCFL Inverter Circuits (337-TA-666)

By Eric Schweibenz
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Sep
02
On August 31, 2009, ALJ E. James Gildea issued an initial determination (Order No. 24) in Certain Cold Cathode Fluorescent Lamp ("CCFL") Inverter Circuits and Products Containing the Same (Inv. No. 337-TA-666).  In the ID, ALJ Gildea granted the August 14, 2009 motion of Complainants O2 Micro International Ltd. and O2 Micro Inc. (collectively “O2 Micro”) and Respondents LG Electronics, Inc. and LG Electronics USA (collectively “LG”), seeking termination of the investigation with respect to LG.  The motion was based on a settlement agreement between O2 Micro and LG that apparently settled all of the existing disputes between O2 Micro and LG. 

According to the ID, O2 Micro and LG executed a Memorandum of Understanding between them on July 30, 2009.  They represented in their joint motion that there were no other agreements between O2 Micro and LG concerning the subject matter of the investigation.  O2 Micro and LG asserted that termination of the investigation “would pose no threat to the public interest” and would result in “conservation of the parties’ time and resources.”
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Update Regarding Certain Bulk Welding Wire Containers (337-TA-686)

By Eric Schweibenz
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Sep
08
Further to our September 3 post, Chief ALJ Paul J. Luckern issued a notice indicating that ALJ Robert K. Rogers, Jr. will handle Certain Bulk Welding Wire Containers and Components Thereof and Welding Wire (Inv. No. 337-TA-686).

Thereafter, ALJ Rogers issued Order No. 1: Protective Order, Order No. 2: Ground Rules, and Order 3: Setting Pre-Hearing Conference in this matter.  In Order No. 3, ALJ Rogers determined that a pre-hearing conference will be held on September 18, 2009.
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ALJ Luckern Issues Order Regarding Witness Statements and Expert Reports in Certain Light Emitting Diode Chips (337-TA-674)

By Eric Schweibenz
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Sep
11
On September 9, 2009, Chief ALJ Paul J. Luckern issued Order No. 17 regarding witness statements and expert reports in Certain Light Emitting Diode Chips, Laser Diode Chips and Products Containing Same (Inv. No. 337-TA-674).

Complainant Gertrude Neumark Rothschild (“Complainant”) proposed that witness statements should not be used in lieu of live witness testimony, though portions could be used for non-controversial matters such as witness background and qualifications.  Complainant also proposed that all expert reports and exhibits, charts, and tables relating thereto be admitted into evidence to make testimony more comprehensible.
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ALJ Luckern Grants Motion to Amend Complaint And Notice Of Investigation To Add Respondents in Certain Energy Drink Products (337-TA-678)

By Eric Schweibenz
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Sep
11
On September 8, 2009 Chief ALJ Paul J. Luckern issued Order No. 11 granting a motion filed by Complainants Red Bull GmbH and Red Bull North America (collectively, “Red Bull”) to amend the complaint and notice of investigation to add six new respondents in Certain Energy Drink Products (Inv. No. 337-TA-678).  Through its motion, Red Bull sought to add the following respondents:  Posh Nosh Imports (USA), Greenwich, Inc., Advantage Food Distributors, Ltd., Wheeler Trading, Inc., Avalon International General Trading, LLC, and Central Supply, Inc. (“Central”).

Central opposed Red Bull’s motion, arguing that Red Bull’s failure to name it in the original complaint was based on a tactical decision by Red Bull to name a small number of respondents, low on the distribution chain, in the hopes they would default.
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ALJ Gildea Grants Motion To Terminate The Investigation With Respect To LGD In Certain CCFL Inverter Circuits (337-TA-666)

By Eric Schweibenz
|
Sep
11
On September 9, 2009, ALJ E. James Gildea issued the public version of Order No. 25 in Certain Cold Cathode Fluorescent Lamp 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. (collectively, “O2 Micro”) and Respondents’ LG Display Co., Ltd. and LG Display America, Inc.’s (collectively, “LGD”) joint motion seeking termination of the investigation with respect to LGD.  The motion was based on a consent order stipulation (“Stipulation”).

According to the Order, O2 Micro and LGD stated that there were no other agreements between O2 Micro and LGD concerning the subject matter of the investigation and argued that termination “would pose no threat to the public interest” and would result in “conservation of the parties’ time and resources.”  The Commission Investigative Staff supported the motion stating that the stipulation “provides an acceptable basis on which to terminate this investigation…” and that the termination “would not be contrary to the public interest.”
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ALJ Gildea Continues His Practice Of Not Using Witness Statements In Lieu of Live Testimony In Certain CCFL Inverter Circuits (337-TA-666)

By Eric Schweibenz
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Sep
11
On September 9, 2009, ALJ E. James Gildea issued Order No. 26 in Certain Cold Cathode Fluorescent Lamp Inverter Circuits and Products Containing the Same (Inv. No. 337-TA-666).

In the Order, ALJ Gildea determined that witness statements in lieu of live testimony would not be accepted.  In addition, ALJ Gildea ordered that “expert reports may be used for impeachment purposes, but would not be admitted into evidence.”  Further, ALJ Gildea set forth certain instructions intended to clarify, and in some instances supersede, the Ground Rules with respect to post-hearing exhibits.
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Update Regarding Certain Collaborative System Products (337-TA-682)

By Eric Schweibenz
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Sep
14
Further to our August 4 post, ALJ E. James Gildea issued Order No. 4: Setting Procedural Schedule in Certain Collaborative System Products and Components Thereof (Inv. No. 337-TA-682).

According to the Order, ALJ Gildea has provided dates in the procedural schedule for submission of proposed claim constructions for disputed claim terms and noted that “absent a showing of good cause, the parties will be bound by their proposed constructions for disputed claim terms on the date the joint submission of disputed claim terms is due.”
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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.