ALJ Pender

ALJ Pender Grants Motion To Terminate Investigation In Certain Kinesiotherapy Devices (337-TA-823)

By Eric Schweibenz
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Jul
06
On June 28, 2012, ALJ Thomas B. Pender issued Order No. 25 granting Complainants Standard Innovation (US) Corp. and Standard Innovation Corporation’s (collectively, “SIC”) motion to terminate the investigation in part with respect to U.S. Patent No. D605,779 (the ‘779 patent) in Certain Kinesiotherapy Devices and Components Thereof(Inv. No. 337-TA-823).

According to the Order, SIC sought to withdraw its allegations of infringement of the ‘779 patent under Commission Rule 210.21(a)(1) in order to streamline the investigation and conserve the resources of the parties and the Commission.  Respondents LELO Inc., Leloi AB, and Lelo Shanghai Trading Ltd. (collectively, “Lelo”) opposed the motion, arguing that SIC committed inequitable conduct before the Commission and that if the motion is granted, then the ALJ should amend the consent orders previously entered terminating the respondent retailers to remove all references to the ‘779 patent (citing Order No. 16 in Certain Vehicle Security Systems).

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ALJ Pender Sets Target Date In Certain Electronic Devices Having A Retractable USB Connector (337-TA-843)

By Eric Schweibenz
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Jul
09
Further to our May 21, 2012 post, on July 6, 2012, ALJ Thomas B. Pender issued Order No. 6 in Certain Electronic Devices Having A Retractable USB Connector (Inv. No. 337-TA-843).

According to the Order, ALJ Pender set September 24, 2013 as the target date (which is approximately 16 months after institution of the investigation).  ALJ Pender further indicated that the initial determination on alleged violation shall be due on May 24, 2013.

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ALJ Pender Denies Motions For Summary Determination As Untimely And Moot In Certain Kinesiotherapy Devices (337-TA-823)

By Eric Schweibenz
|
Jul
12
On July 10, 2012, ALJ Thomas B. Pender issued Order No. 27 in Certain Kinesiotherapy Devices and Components Thereof (Inv. No. 337-TA-823).  In the Order, ALJ Pender denied Complainants Standard Innovation (US) Corp. and Standard Innovation Corporation (collectively, “SIC”) and Respondents Lelo Inc., LELOi AB, Lelo Shanghai Trading Ltd. (collectively, “Lelo”), PHE Inc., Nalpac Enterprises, Ltd., E.T.C., Inc., Williams Trading Co., Inc., Honey’s Place, Inc., and Lover’s Lane & Co.’s (“Lover’s Lane”) (all collectively, the “Moving Parties”) motion for leave to file motions for summary determination on or before July 2, 2012 in accordance with the Procedural Schedule even though these motions for summary determination would be filed less than 60 days before the date fixed for the evidentiary hearing.

According to the Order, the Moving Parties argued that their reliance on the Procedural Schedule constituted exceptional circumstances and that good cause existed to permit their summary determination motions to be filed out of time.  The Commission Investigative Staff did not oppose the Moving Parties’ motion.

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ALJ Pender Grants Motion To Terminate Investigation As To MaxLite In Certain Dimmable Compact Fluorescent Lamps (337-TA-830)

By Eric Schweibenz
|
Jul
16
On July 11, 2012, ALJ Thomas B. Pender issued Order No. 8 in Certain Dimmable Compact Fluorescent Lamps and Products Containing Same (Inv. No. 337-TA-830).

In the Order, ALJ Pender granted a motion filed by Respondent MaxLite, Inc. f/k/a SK America, Inc. (“MaxLite”) to terminate the investigation based on the entry of a consent order.  

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ALJ Pender Sets 18-Month Target Date In Certain Electronic Devices, Including Mobile Phones And Tablet Computers (337-TA-847)

By Eric Schweibenz
|
Jul
26
Further to our June 7, 2012 post, on July 24, 2012, ALJ Thomas B. Pender issued Order No. 2 in Certain Electronic Devices, Including Mobile Phones and Tablet Computers, and Components Thereof (Inv. No. 337-TA-847).

According to the Order, ALJ Pender set January 23, 2014 as the target date (which is approximately 18 months after institution of the investigation).  ALJ Pender noted that good cause exists to set an eighteen month target date in light of the fact that “[t]his investigation has eighty-seven asserted claims spread over nine asserted patents; the patents covering eight completely unrelated (i.e., dissimilar) technologies.”  ALJ Pender added the “sheer size and complexity of this investigation, coupled with the disappointing fact that [the] Office of Unfair Import Investigations is not participating, makes a sixteen month target date untenable.” 

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ALJ Pender Grants Motion To Terminate As To Archos In Certain Electronic Devices Having A Retractable USB Connector (337-TA-843)

By Eric Schweibenz
|
Jul
26
On July 23, 2012, ALJ Thomas B. Pender issued Order No. 11 in Certain Electronic Devices Having A Retractable USB Connector(Inv. No. 337-TA-843).

In the Order, ALJ Pender granted a joint motion filed by Complainant Anu IP LLC and Respondents Archos SA and Archos, Inc. (collectively, “Archos”) to terminate the investigation based on a settlement agreement.

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ALJ Pender Grants-In-Part Motions To Preclude Expert Testimony In Certain Light-Emitting Diodes (337-TA-785)

By Eric Schweibenz
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Jul
30
On July 26, 2012, ALJ Thomas B. Pender issued the public version of Order No. 34 (dated June 20, 2012) granting-in-part motions by respondents LG Electronics, Inc., LG Innotek Co., Ltd., LG Electronics U.S.A., Inc., and LG Innotek U.S.A., Inc. (collectively, “LG”), and Samsung Electronics Co., Ltd. and Samsung Electronics America, Inc. (collectively, “Samsung”) to preclude complainant OSRAM AG (“OSRAM”) from offering expert testimony and evidence regarding infringement and domestic industry in Certain Light-Emitting Diodes and Products Containing the Same (Inv. No. 337-TA-785).

By way of background, ALJ Pender previously sanctioned OSRAM in Order No. 31 for supplementing its responses to contention interrogatories on infringement and domestic industry after the February 24, 2012 deadline, and denied OSRAM’s motion to supplement its expert reports in Order No. 33.  See our June 12, 2012 and June 20, 2012 posts for more details.

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ALJ Pender Denies Motion To Compel Production Of Source Code In Certain Electronic Devices With Communication Capabilities (337-TA-808)

By Eric Schweibenz
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Jul
31
On July 26, 2012, ALJ Thomas B. Pender issued the public version of Order No. 7 (dated February 29, 2012) in Certain Electronic Devices with Communication Capabilities, Components Thereof, and Related Software (Inv. No. 337-TA-808).  In the Order, ALJ Pender denied Complainant HTC Corp.’s (“HTC”) motion to compel Respondent Apple Inc. (“Apple”) to produce complete copies of commercial builds of source code and maintenance releases for the accused products in the investigation.

According to the Order, HTC argued that the full disclosure of complete copies of source code was essential for ensuring the swift and reliable discovery contemplated under the Procedural Schedule.  HTC stated that the private parties had agreed to simultaneously produce source code on January 17, 2012, but that Apple had omitted critical portions of source code from its production.  HTC argued that these deficiencies in Apple’s production were impairing HTC’s ability to determine the operation, implementation, and functionality of the accused products.  HTC further argued that the deficiencies would impair HTC’s ability to prepare its infringement contentions and meaningfully depose Apple’s witnesses.  HTC also argued that Apple’s production of complete commercial builds of source code would not be unreasonable or harmful to Apple.

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ALJ Pender Grants Motions To Terminate Investigation In Certain Electronic Devices Having A Retractable USB Connector (337-TA-843)

By Eric Schweibenz
|
Aug
01
On July 30, 2012, ALJ Thomas B. Pender issued Order Nos. 13-16 in Certain Electronic Devices Having A Retractable USB Connector(Inv. No. 337-TA-843).

In Order No. 13, ALJ Pender granted a motion filed by Respondent Patriot Memory, LLC to terminate the investigation based upon a stipulation and consent order.  According to the Order, Complainant Anu IP LLC (“Anu”) and the Commission Investigative Staff (“OUII”) did not oppose the motion.  

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ALJ Pender Denies MaxLite’s Motion to Terminate in Certain Dimmable Compact Fluorescent Bulbs (337-TA-830)

By Eric Schweibenz
|
Aug
01
On July 26, 2012, ALJ Thomas B. Pender issued the public version of Order No. 6 (dated May 16, 2012) denying Respondent MaxLite, Inc.’s motion to terminate the investigation in Certain Dimmable Compact Fluorescent Lamps and Products Containing Same (Inv. No. 337-TA-830).

By way of background, the investigation is based on a complaint filed by Neptun Light, Inc. and Andrzej Bobel (collectively, “Complainants”) alleging violation of Section 337 in the importation and sale of certain dimmable compact fluorescent lamps (CFLs) and products containing same that infringe one or more claims of U.S. Patent Nos. 5,434,480 and 8,035,318.  See our February 23, 2012 post for more details.

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ALJ Pender Denies Motion To Quash In Certain Computing Devices With Associated Instruction Sets And Software (337-TA-812)

By Eric Schweibenz
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Aug
01
On July 24, 2012, ALJ Thomas B. Pender issued Order No. 9 in Certain Computing Devices With Associated Instruction Sets And Software (Inv. No. 337-TA-812) denying non-party ARM, Inc.’s (“ARM”) motion to quash or limit a subpoena duces tecum and ad testificandum served upon it by Complainants VIA Technologies, Inc., IP-First, LLC, and Centaur Technology, Inc. (collectively, “VIA”).

According to the Order, in support of its motion ARM argued that the subpoenas posed an undue burden.  Specifically, ARM asserted that the information sought would not be probative of how ARM products function, but rather would provide only “secondary” evidence.  According to ARM, the sole authoritative source for understanding how its products function is the RTL code. As to the testimony sought, ARM argued such testimony would be duplicative of that produced by Respondent Apple, Inc. (“Apple”).  In addition, ARM alleged that the subpoenas served February 23, 2012 were served too late in the discovery process to be practically enforced.  VIA opposed ARM’s motion, arguing that the testimony and documents would aid in understanding how the products operate and, in comparison to the RTL code, would provide higher-level details and simplifications of design. VIA also asserted that information regarding the Cortex-A9 was not located by Apple, thus such information would not be duplicative.  As to the timeliness of service and breadth of the requests, VIA noted that fact discovery did not close until April 2, 2012 and that the parties had negotiated and narrowed the scope of the information requested.

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ALJ Pender Sets Procedural Schedule In Certain Electronic Devices Having A Retractable USB Connector (337-TA-843)

By Eric Schweibenz
|
Aug
01
Further to our May 21, 2012 and July 9, 2012 posts, on July 30, 2012, ALJ Thomas B. Pender issued Order No. 17 in Certain Electronic Devices Having A Retractable USB Connector (Inv. No. 337-TA-843).

In the Order, ALJ Pender set the procedural schedule for the investigation and included provisions for the early exchange of claim construction terms and proposed constructions as well as Markman briefing and a Markman hearing.  ALJ Pender further indicated that the evidentiary hearing will commence on January 18, 2013, any final initial determination will issue no later than May 24, 2013, and the target date for completion of the investigation is September 24, 2013 (which is approximately 16 months after institution of the investigation).

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ALJ Pender Grants Motions To Terminate Investigation In Certain Electronic Devices Having A Retractable USB Connector (337-TA-843)

By Eric Schweibenz
|
Aug
02
On July 31, 2012, ALJ Thomas B. Pender issued Order Nos. 18-19 in Certain Electronic Devices Having A Retractable USB Connector(Inv. No. 337-TA-843).

In Order No. 18, ALJ Pender granted a motion filed by Complainant Anu IP LLC (“Anu”) to terminate the investigation with respect to Respondent Latte Communications Inc. on the basis of a settlement agreement.  According to the Order, the Commission Investigative Staff (“OUII”) filed a response supporting the motion.  

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ALJ Pender Denies Motion To Terminate In Certain Dimmable Compact Fluorescent Bulbs (337-TA-830)

By Eric Schweibenz
|
Aug
06
On July 30, 2012, ALJ Thomas B. Pender issued Order No. 9 denying Complainants Neptun Light, Inc. and Andrzej Bobel (collectively, “Complainants”) motion to terminate the investigation in Certain Dimmable Compact Fluorescent Lamps and Products Containing Same (Inv. No. 337-TA-830).

By way of background, the investigation is based on a complaint filed by Complainants alleging violation of Section 337 in the importation and sale of certain dimmable compact fluorescent lamps (CFLs) and products containing same that infringe one or more claims of U.S. Patent Nos. 5,434,480 and 8,035,318.  See our February 23, 2012 post for more details.

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ALJ Pender Grants Motions To Terminate Investigation In Certain Electronic Devices Having A Retractable USB Connector (337-TA-843)

By Eric Schweibenz
|
Aug
06
On August 2, 2012, ALJ Thomas B. Pender issued Order No. 21 in Certain Electronic Devices Having A Retractable USB Connector(Inv. No. 337-TA-843).

In the Order, ALJ Pender granted a joint motion filed by Complainant Anu IP LLC (“Anu”) and Respondent Coby Electronics Corporation (“Coby) to terminate the investigation with respect to Coby on the basis of a settlement agreement.  After reviewing the confidential and non-confidential versions of the agreement, ALJ Pender granted the motion filed by Anu and Coby.

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ALJ Pender Denies Motion For Non-Monetary Sanctions In Certain Dimmable Compact Fluorescent Bulbs (337-TA-830)

By Eric Schweibenz
|
Aug
10
On July 30, 2012, ALJ Thomas B. Pender issued Order No. 10 denying Complainants’ Neptun Light, Inc. and Andrzej Bobel (collectively, “Complainants”) motion for non-monetary sanctions against Respondents U Lighting America, Inc. (“ULA”) and Feit Electric Company (“Feit”) in Certain Dimmable Compact Fluorescent Lamps and Products Containing Same (Inv. No. 337-TA-830).  Specifically, Complainants motion sought to preclude ULA and Feit from relying on prior art listed in their Notice of Prior Art that was not contained in their earlier-filed contention interrogatory responses on invalidity and unenforceability. 

By way of background, this investigation is based on a complaint filed by Complainants alleging violation of Section 337 in the importation and sale of certain dimmable compact fluorescent lamps (CFLs) and products containing same that infringe one or more claims of U.S. Patent Nos. 5,434,480 and 8,035,318.  See our February 23, 2012 post for more details.

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ALJ Pender Denies Google Request To Intervene In Certain Electronic Devices, Including Mobile Phones And Tablet Computers (337-TA-847)

By Eric Schweibenz
|
Aug
10
On August 7, 2012, ALJ Thomas B. Pender issued Order No. 3 granting non-party Google, Inc. (“Google”) intervenor status but denying its motion to intervene in Certain Electronic Devices, Including Mobile Phones and Tablet Computers, and Components Thereof (Inv. No. 337-TA-847).

According to the Order, Google sought to intervene as a respondent to defend the Google products and services identified in the complaint and to protect its “significant interest” in the investigation, arguing that granting intervention would aid in the adjudication of the issues related to five of the nine asserted patents because the accused products or services are proprietary Android applications developed by Google and supplied by respondents HTC Corp. and HTC America, Inc. (collectively, “HTC”).  HTC supported the motion, adding that complainants Nokia Corp., Nokia Inc., and Intellisync Corp.’s (collectively, “Nokia”) claim charts identify and rely on features of Gmail, Google Calendar, or other aspects of the Android operating system to allege infringement, and that allowing Google to intervene would avoid complicated third party discovery with respect to those features.  Nokia opposed the motion, contending that Google demonstrated only that it supplies an essential component of the accused products and did not establish that its products could be directly excluded from importation by the requested remedy.

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ALJ Pender Grants Motion To Strike Untimely Invalidity Opinions In Certain Kinesiotherapy Devices (337-TA-823)

By Eric Schweibenz
|
Aug
14
On August 8, 2012, ALJ Thomas B. Pender issued Order No. 35 granting Complainants Standard Innovation (US) Corp. and Standard Innovation Corporation’s (collectively, “SIC”) motion to strike untimely invalidity opinions and references from the Supplemental Expert Report of Sari Locker in Certain Kinesiotherapy Devices and Components Thereof(Inv. No. 337-TA-823).

According to the Order, the parties were granted leave to supplement their expert reports on infringement and non-infringement issues raised by the Tiani 2, a new version of the Tiani product introduced by some of the respondents in the investigation. SIC argued that Dr. Locker’s supplemental expert report went beyond Tiani 2 infringement issues, however, and presented new or revised invalidity opinions and references that should be stricken. Respondents LELO Inc., LELOi AB, LELO, PHE, Inc. d/b/a Adam & Eve, Nalpac Enterprises, Ltd. d/b/a Nalpac, Ltd., E.T.C., Inc. d/b/a Eldorado Trading Company, Inc., Williams Trading Co., Inc., Honey’s Place, Inc., and Lover’s Lane & Co. (collectively, “Respondents”) countered that SIC’s experts did not limit their supplemental reports to Tiani 2 infringement issues and gave extensive opinions on claim construction and domestic industry, and that Dr. Locker’s challenged opinions are therefore proper rebuttal testimony. The Commission Investigative Staff supported the motion but disagreed with SIC that most of the challenged portions of Dr. Locker’s supplemental expert report relate to invalidity, asserting instead that the majority of the report relates to new opinions regarding SIC’s experts’ claim construction positions and thus should have been presented in Dr. Locker’s first rebuttal report. Because Respondents did not contend that the challenged opinions address infringement of the Tiani 2 and did not seek leave to otherwise supplement their expert reports, ALJ Pender granted the motion.

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ALJ Pender Grants Motion For Early Limited Claim Construction Briefing In Certain Electronic Devices Having A Retractable USB Connector (337-TA-843)

By Eric Schweibenz
|
Aug
14
On August 10, 2012, ALJ Thomas B. Pender issued Order No. 22 granting Respondents General Imaging Company, JVC Kenwood Corporation and JVC Americas Corporation, Olympus Corporation and the Olympus Corporation of the Americas, Panasonic Corporation and Panasonic Corporation of North America, Samsung Electronics Co., Ltd. and Samsung Electronics America, Inc., SANYO Electric Co., Ltd. and SANYO North America Corporation, VOXX International Corporation and Audiovox Accessories Corporation, and Yamaha Corporation of America’s (collectively, “Moving Respondents”) motion for early limited claim construction briefing in Certain Electronic Devices Having A Retractable USB Connector(Inv. No. 337-TA-843).

According to the Order, the Moving Respondents argued that while the asserted patents claim a particular type of improved thumb drive, Complainant Anu IP, LLC (“Anu”) accused many respondents of infringement based on the importation and sale of products that are not thumb drives (e.g., digital cameras, camcorders, etc.).  According to the Moving Respondents, whether the term “thumb drive” recited in the preamble of every asserted claim is a limitation is dispositive of infringement by accused products that are not thumb drives.  Further, the Moving Respondents contended that each asserted claim requires that an on-board memory is “coupled” to a male USB connector, and that whether this term requires a physical attachment is also dispositive as to infringement of many accused products.  Thus, the Moving Respondents sought an early schedule for Markman briefing (with no hearing or discovery necessary) on these two claim terms.  Anu opposed the motion, arguing that the majority of respondents do not support the request, that holding two Markman proceedings would unnecessarily complicate the investigation and waste resources (especially because certain respondents have “reached settlements in principle with Anu”), that the terms “thumb drive” and “coupled” are not case-dispositive, and that the Moving Respondents have refused to answer discovery concerning their claim construction positions.  The Commission Investigative Staff did not oppose the motion, but was concerned that an early Markman schedule would not be cost-effective if the Moving Respondents filed multiple briefs, and was not convinced that the two claim terms at issue are case-dispositive.

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ALJ Pender Sets Target Date In Certain Integrated Circuit Packages Provided With Multiple Heat-Conducting Paths (337-TA-851)

By Eric Schweibenz
|
Aug
14
Further to our July 6, 2012 post, on August 9, 2012, ALJ Thomas B. Pender issued Order No. 3 in Certain Integrated Circuit Packages Provided With Multiple Heat-Conducting Paths and Products Containing Same(Inv. No. 337-TA-851).

According to the Order, ALJ Pender set November 5, 2013 as the target date (which is approximately 16 months after institution of the investigation).  ALJ Pender further indicated that the initial determination on alleged violation shall be due on July 5, 2013.

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