ALJ Rogers

ALJ Rogers Grants Motion For Summary Determination Of No Domestic Industry in Certain Video Game Systems and Controllers (Inv. No. 337-TA-743)

By Eric Schweibenz
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Mar
01
On February 24, 2011, ALJ Robert K. Rogers, Jr. issued the public version of Order No. 12 (dated February 11, 2011) in Certain Video Game Systems and Controllers (Inv. No. 337-TA-743) granting Respondents Nintendo Co., Ltd. and Nintendo of America Inc.’s (collectively “Nintendo”) motion for summary determination that the economic prong of the domestic industry requirement is not satisfied and terminating the investigation.

According to the Order, Nintendo argued that Complainant Motiva, LLC (“Motiva”) cannot satisfy the economic prong of the domestic industry requirement because (1) the activities of the inventors of the asserted patents should not be attributable to Motiva because their activities occurred prior to the formation of Motiva, and the alleged marketing and development activities are not “substantial” at any rate; (2) Motiva’s research and development, marketing activities, and obtaining a freedom-to-operate opinion are irrelevant because they occurred before the asserted patents issued and several years prior to the filing of the complaint; (3) Motiva has neither invested in licensing activities or anything else relevant to the economic prong of the domestic industry requirement; and (4) Commission precedent establishes that Motiva’s alleged prosecution, district court litigation, and opinion-of-counsel cannot establish a domestic industry.

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ALJ Rogers Rules On Motion For Clarification Of The Ground Rules Regarding Settlement In Certain Starter Motors And Alternators (337-TA-755)

By Eric Schweibenz
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Mar
02
On February 28, 2011, ALJ Robert K. Rogers, Jr. issued Order No. 10 in Certain Starter Motors and Alternators (Inv. No. 337-TA-755).  In the Order, ALJ Rogers denied Respondent Wetherill Associates, Inc.’s (“WAI”) motion for clarification of the ground rules regarding settlement.

According to the Order, WAI explained in its motion that it seeks to conduct a face-to-face settlement conference with Complainants Remy International, Inc. and Remy Technologies, LLC (collectively, “Remy”) with the parties’ corporate representatives present.  WAI also seeks to involve a Commission-appointed mediator in the settlement conference.  According to WAI, Remy has rejected these proposals, and Remy wishes to hold “informal” settlement conferences by telephone between the parties’ outside counsel.  In its motion, WAI argued that Remy’s proposal is not within the spirit of the Ground Rules and that this is just the latest instance of Remy’s refusal to make good faith efforts to resolve the dispute between the parties.  WAI accordingly requested that ALJ Rogers issue an order clarifying the following:  (1) whether or not settlement conferences must be held face-to-face; (2) whether or not settlement conferences must be attended by a corporate representative with full authority to settle; (3) whether or not a Commission-appointed mediator may attend a settlement conference; and (4) whether or not the parties must serve settlement statements on one another prior to the date of the settlement conference.

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ALJ Rogers Grants Motion For A Protective Order In Certain Video Game Systems And Controllers (337-TA-743)

By Eric Schweibenz
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Mar
04
On March 1, 2011, ALJ Robert K. Rogers, Jr. issued the public version of Order No. 10 (dated January 12, 2011) in Certain Video Game Systems and Controllers (Inv. No. 337-TA-743).  In the Order, ALJ Rogers granted Respondents Nintendo Co., Ltd. and Nintendo of America Inc.’s (collectively, “Nintendo”) motion for a protective order regarding the deposition of Mr. Shigeru Miyamoto.

According to the order, Complainant Motiva, LLC (“Motiva”) had noticed a deposition for Mr. Miyamoto.  Nintendo argued in its motion that Mr. Miyamoto is a high-ranking Nintendo executive that does not possess detailed technical information regarding Nintendo’s accused product, the Nintendo Wii gaming system.  Nintendo noted that Motiva was seeking to depose Mr. Miyamoto before any other Nintendo employee and argued that Motiva could obtain the information it seeks about the Wii through less obtrusive and burdensome methods.

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ALJ Rogers Denies Motion To Amend Protective Order And Grants Motion To Compel Discovery In Certain Flash Memory Chips (337-TA-735)

By Eric Schweibenz
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Mar
07
On March 1, 2011, ALJ Robert K. Rogers, Jr. issued the public version of Order Nos. 16 and 17 (dated January 31, 2011) denying Respondent Samsung Electronics Co., Ltd’s (“Samsung”) motion to amend the protective order and granting Complainant Spansion, LLC’s (“Spansion”) motion to compel discovery, respectively, in Certain Flash Memory Chips and Products Containing Same (Inv. No. 337-TA-735).

According to Order 16, Samsung sought to amend the protective order to provide additional protection for electronic files generated using a tool called the Graphic Database System (“GDS”), arguing that the GDS files contain a level of detail regarding the design and implementation of Samsung’s accused flash memory products beyond what can be ascertained from other documents produced in the investigation, and that a competing semiconductor manufacturer could replicate Samsung’s flash memory devices with precision using only Samsung’s GDS files.  Spansion opposed the motion, asserting that (1) Samsung unnecessarily delayed producing such files, (2) the additional protections are unnecessary and unduly burdensome, and (3) in district court litigation between the two parties, Samsung opposed a request to provide heightened protection for similar documents.  The Commission Investigative Staff also opposed the motion, arguing that the GDS files are not the type of documents generally afforded heightened protection, and that the existing protective order is adequate.  ALJ Rogers found that Samsung failed to demonstrate good cause to amend the protective order by not showing that the standard protective order was inadequate, observing that (1) this was the third attempt by a party to amend the protective order in this investigation, (2) Samsung did not raise the issue until after the parties’ joint motion to amend the protective order was filed and granted, and (3) the district court litigation did not involve GDS files and was therefore irrelevant.

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ALJ Rogers Rules On Motion For Sanctions In Certain Inkjet Ink Cartridges With Printheads (337-TA-723)

By Eric Schweibenz
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Mar
08
On March 1, 2011, ALJ Robert K. Rogers, Jr. issued the public version of Order No. 24 (dated December 23, 2010) in Certain Inkjet Ink Cartridges with Printheads and Components Thereof (Inv. No. 337-TA-723).  In the Order, ALJ Rogers denied Respondent Asia Pacific Microsystems, Inc.’s (“APM”) motion for sanctions against Complainants Hewlett-Packard Company and Hewlett-Packard Development Company, L.P. (collectively, “HP”).

According to the Order, APM sought sanctions against HP based on a claim that HP had not had an objectively reasonable basis to name APM as a Respondent in the investigation.  In particular, APM sought the following sanctions:  (1) a finding that HP’s Complaint against APM was not pled with particularity, is lacking evidentiary basis, and was filed without making a proper pre-filing inquiry, with respect to the alleged importation of APM’s accused products into the U.S.; (2) dismissal of HP’s complaint against APM; (3) an award of reasonable attorneys’ fees and other expenses to APM; and (4) any other sanctions or findings that the Commission finds just and appropriate.

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ALJ Rogers Releases The Public Versions Of Multiple Orders In Certain Inkjet Ink Cartridges With Printheads (337-TA-723)

By Eric Schweibenz
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Mar
09
On March 3, 2011, ALJ Robert K. Rogers, Jr. issued the public version of Order No. 27 (dated January 4, 2011), Order No. 30 (dated January 11, 2011), Order No. 33 (dated January 20, 2011), Order No. 37 (dated January 28, 2011), Order No. 41 (dated February 7, 2011) and Order No. 43 (dated February 11, 2011) in Certain Inkjet Ink Cartridges with Printheads and Components Thereof (Inv. No. 337-TA-723).

In Order 27, ALJ Rogers denied Respondent Asia Pacific Microsystems, Inc.’s (“APM”) motion to restrict the theories and evidence of importation that Complainants Hewlett-Packard Company and Hewlett-Packard Development Company, L.P. (collectively, “HP”) may rely upon.  APM argued that HP should be restricted to the theories and evidence provided in response to APM’s interrogatories regarding the importation of APM’s products, in which HP merely pointed to the evidence and allegations contained in the complaint.  HP, however, maintained that it provided sufficient notice of its theories and evidence on importation based on the contentions in a supplemental expert report, which contained opinions on wafer samples that APM had to be compelled to produce, and which was incorporated by reference into HP’s supplemental interrogatory responses.  In denying the motion, ALJ Rogers noted that it was not necessary for HP to serve supplemental interrogatory responses to incorporate by reference the supplemental report that it had already served on APM, and that even if such supplemental responses were necessary, nothing prohibited HP from incorporating a supplemental report by reference into its interrogatory responses.

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ALJ Rogers Rules on Motions to Compel, Motions to Strike and Motions for Summary Determination In Certain Digital Imaging Devices And Related Software (337-TA-717)

By Eric Schweibenz
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Mar
10
On March 1 and 2, 2011, ALJ Robert K. Rogers, Jr. issued public versions of Order Nos. 16, 20, 21, 22, 24, 25, and 26 in Certain Digital Imaging Devices and Related Software (Inv. No. 337-TA-717).

In Order No. 16 (dated December 6, 2010), ALJ Rogers denied Respondent Eastman Kodak Company’s (“Kodak”) motion to strike a portion of a supplemental expert report filed on behalf of Complainant Apple, Inc. (“Apple”).  According to the Order, Kodak argued that while the parties agreed that Apple’s expert could serve a supplemental expert declaration to address source code first produced by third parties after the deadline for initial expert reports, a portion of Apple’s supplemental expert report addressed the technical prong of the domestic industry requirement, which in turn was based on information available prior to the initial expert report deadline.  Apple responded that it would not rely upon this disputed portion of the supplemental report when its expert testifies on the technical prong.  ALJ Rogers determined that Apple would be held to its representation and on that basis denied Kodak’s motion as moot.

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ALJ Rogers Sets Target Date In Certain Liquid Crystal Display Devices (337-TA-760)

By Eric Schweibenz
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Mar
11
Further to our February 25, 2011 post, on March 9, 2011, ALJ Robert K. Rogers issued Order No. 4: Setting Target Date in Certain Liquid Crystal Display Devices, Products Containing Same, and Methods for Using the Same (Inv. No. 337-TA-760).

According to the Order, ALJ Rogers set July 2, 2012 as the target date (which is 16 months after institution of the investigation).  ALJ Rogers further indicated that the initial determination on alleged violation shall be due on March 1, 2012.

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ALJ Rogers Denies Motion To Terminate Investigation Based On Consent Order In Certain Starter Motors And Alternators (337-TA-755)

By Eric Schweibenz
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Mar
24
On March 22, 2011, ALJ Robert K. Rogers, Jr. issued Order No. 11 in Certain Starter Motors and Alternators (Inv. No. 337-TA-755).  In the Order, ALJ Rogers denied Respondent Yongkang Boyu Auto Motor Company’s (“Yongkang Boyu”) motion to terminate the investigation based on a consent order.

According to the Order, Yongkang Boyu’s motion sought to enter into a consent order so that it could be terminated from the investigation.  Complainants Remy International, Inc. and Remy Technologies, LLC (collectively, “Remy”) and the Commission Investigative Staff (“OUII”) opposed the motion because Yongkang Boyu’s Proposed Consent Order and Consent Order Stipulation were limited to a single product - the N8206-5 alternator.

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ALJ Rogers Sets Target Date In Certain Gemcitabine (337-TA-766)

By Eric Schweibenz
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Mar
29
Further to our March 18, 2011 post, on March 24, 2011, ALJ Robert K. Rogers issued Order No. 4: Setting Target Date in Certain Gemcitabine and Products Containing Same (Inv. No. 337-TA-766).

According to the Order, ALJ Rogers set July 23, 2012 as the target date (which is 16 months after institution of the investigation).  ALJ Rogers further indicated that the initial determination on alleged violation shall be due on March 22, 2012.

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ALJ Rogers Sets Procedural Schedule In Certain Liquid Crystal Display Devices (337-TA-760)

By Eric Schweibenz
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Mar
30
On March 24, 2011, ALJ Robert K. Rogers issued Order No. 7:  Setting Procedural Schedule in Certain Liquid Crystal Display Devices, Products Containing Same, and Methods for Using the Same (Inv. No. 337-TA-760).

In the Order, ALJ Rogers set the procedural schedule for the investigation and included provisions for the early exchange of claim construction terms and proposed constructions.  The procedural schedule also provides that the evidentiary hearing in this investigation will commence on December 5, 2011.

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ALJ Rogers Denies Respondent’s Motion To Compel Amendment Of Complaint in Certain Starter Motors and Alternators (Inv. No. 337-TA-755)

By Eric Schweibenz
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Apr
06
On March 31, 2011, ALJ Robert K. Rogers, Jr. issued Order No. 13 in Certain Starter Motors and Alternators (Inv. No. 337-TA-755).  In the Order, ALJ Rogers denied Respondent Wetherill Associates, Inc. d/b/a WAI Global’s (“WAI”) motion to compel complainants Remy International, Inc. and Remy Technologies, L.L.C., (collectively “Remy”) to either amend their complaint to name BBB Industries, LLC (“BBB”) as a respondent or withdraw their request for a general exclusion order.

According to the Order, WAI asserts that BBB is one of the largest sellers of starter motors and alternators in the United States, and that these starter motors and alternators are manufactured outside of the United States and carry the same uniform, industry-wide tracking numbers as the accused products identified in Remy’s Amended Complaint.  WAI argued that to prevent complainants from manipulating the system by naming only respondents likely to default or mount a weak defense, it is the ITC’s policy to encourage complainants seeking a general exclusion order to name all known alleged infringers in their complaint.  Since Remy is seeking a general exclusion order, WAI argued Remy should be compelled to add BBB as a respondent or withdraw its request for a general exclusion order.

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ALJ Rogers Denies Motion For Summary Determination Based On Failure To Include Meet-And-Confer Certification In Certain Flash Memory Chips (337-TA-735)

By Eric Schweibenz
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May
05
On May 3, 2011, ALJ Robert K. Rogers, Jr. issued Order No. 31 in Certain Flash Memory Chips and Products Containing Same (Inv. No. 337-TA-735).

According to the Order, Complainant Spansion, LLC (“Spansion”) filed a motion for summary determination that it satisfied the technical prong of the domestic industry requirement for U.S. Patent No. 6,369,416.  Respondents Samsung Electronics Co., Ltd, Samsung Electronics America, Inc., Samsung International, Inc., Samsung Semiconductor, Inc., Samsung Telecommunications America, LLC, Nokia, Inc., Nokia Corporation, Apple Inc., PNY Technologies, Inc., Transcend Information Inc., Transcend Information, Inc. (US), and Transcend Information Inc. filed a response opposing the motion.  The Commission Investigative Staff filed a response supporting the motion.

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ALJ Rogers Sets Target Date In Certain Polyimide Films (337-TA-772)

By Eric Schweibenz
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May
09
Further to our May 3, 2011 post, on May 5, 2011, ALJ Robert K. Rogers, Jr. issued Order No. 4: Setting Target Date in Certain Polyimide Films, Products Containing Same, and Related Methods (Inv. No. 337-TA-772).

According to the Order, ALJ Rogers set September 4, 2012 as the target date (which is 16 months after institution of the investigation).  ALJ Rogers further indicated that the initial determination on alleged violation shall be due on May 3, 2012.

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ALJ Rogers Denies Motion For Reconsideration In Certain Flash Memory Chips (337-TA-735)

By Eric Schweibenz
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May
10
On May 9, 2011, ALJ Robert K. Rogers, Jr. issued Order No. 34 in Certain Flash Memory Chips and Products Containing Same (Inv. No. 337-TA-735).

According to the Order, Complainant Spansion, LLC (“Spansion”) filed a motion for reconsideration of Order No. 31 which denied Spansion’s motion for summary determination that it satisfied the technical prong of the domestic industry requirement for U.S. Patent No. 6,369,416.  Specifically, in Order No. 31, ALJ Rogers determined that Spansion violated Ground Rule 3.2 by failing to include a meet-and-confer certification or reference to any discussions among the parties concerning the subject matter of the motion.  See our May 5, 2011 post for more details.

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ALJ Rogers Denies Motion To Compel Corporate Deposition Testimony In Certain Flash Memory Chips (337-TA-735)

By Eric Schweibenz
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May
13
On May 10, 2011, ALJ Robert K. Rogers, Jr. issued the public version of Order No. 27 (dated April 19, 2011) denying Complainant Spansion, LLC’s (“Spansion”) motion to compel in Certain Flash Memory Chips and Products Containing Same (Inv. No. 337-TA-735).

According to the Order, Spansion moved to compel Respondent Samsung Electronics Co., Ltd (“Samsung”) to produce a corporate representative to provide deposition testimony regarding a number of identified deposition topics.  Spansion asserted that Samsung’s corporate witness, Mr. Pak Sun Kwok, was not sufficiently prepared to present testimony on all of the designated topics.  Specifically, Spansion argued that Mr. Kwok was unprepared to testify as to GDS files because although Samsung produced 62 GDS files in the investigation, Mr. Kwok testified that he only reviewed one.  Spansion also argued that Mr. Kwok was unprepared to testify as to details regarding the periphery area of the accused flash memory chip products, including but not limited to details on the metal layers.

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ALJ Rogers Issues Initial Determination In Certain Digital Imaging Devices And Related Software (337-TA-717)

By Eric Schweibenz
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May
16
On May 12, 2011, ALJ Robert K. Rogers, Jr. issued a notice regarding the Initial Determination on Violation (“ID”) in Certain Digital Imaging Devices and Related Software (Inv. No. 337-TA-717).

By way of background, the Complainant in this matter is Apple, Inc.  The Respondent is Eastman Kodak Company (“Kodak”).

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ALJ Rogers Sets Procedural Schedule In Certain Polyimide Films (337-TA-772)

By Eric Schweibenz
|
May
17
Further to our May 3, 2011 and May 9, 2011 posts, on May 16, 2011, ALJ Robert K. Rogers issued Order No. 5: Setting Procedural Schedule in Certain Polyimide Films, Products Containing Same, and Related Methods (Inv. No. 337-TA-772).

In the Order, ALJ Rogers set the procedural schedule for the investigation and included provisions for the early exchange of claim construction terms and proposed constructions.  The procedural schedule also provides that the evidentiary hearing in this investigation will commence on March 12, 2012.

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ALJ Rogers Denies Motion to Compel Plant Inspections In Certain Liquid Crystal Display Devices (337-TA-741/749)

By Eric Schweibenz
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May
27
On May 25, 2011, ALJ Robert K. Rogers, Jr. issued the public version of Order No. 12C (dated April 19, 2011) in Certain Liquid Crystal Display Devices, Including Monitors, Televisions, and Modules, and Components Thereof (Inv. No. 337-TA-741/749).

According to the Order, Complainants Thomson Licensing SAS and Thomson Licensing LLC (collectively, “Thomson”) filed a motion to compel Respondents Chimei Innolux Corp., Innolux Corp., and Chi Mei Optoelectronics USA, Inc. (collectively, “CMI”) and Respondent AU Optronics Corp. (“AUO”) to provide counsel for Thomson and its technical experts access to the manufacturing facilities of CMI and AUO for the purposes of conducting videotaped and photographed inspections of CMI and AUO’s manufacturing processes.

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ALJ Rogers Rules on Motions Regarding Discovery, Summary Determination, and Expert Reports In Certain Flash Memory Chips (337-TA-735)

By Eric Schweibenz
|
May
31
On May 25, 2011, ALJ Robert K. Rogers, Jr. issued public versions of several orders granting Respondent Samsung Electronics Co., Ltd.’s (“Samsung”) motion to compel Complainant Spansion LLC’s (“Spansion”) to produce corporate testimony regarding its products; granting-in-part Respondents’ motion to strike portions of a Spansion initial expert report; granting-in-part Spansion’s motion to supplement an expert report; and denying Spansion’s motion for summary determination that it satisfies the economic prong of the domestic industry requirement in Certain Flash Memory Chips and Products Containing Same (Inv. No. 337-TA-735).

By way of background, Spansion’s complaint filed in August 2010 asserted that certain Samsung products infringe U.S. Patent Nos. 6,369,416 (the ‘416 Patent), 6,459,625 (the ‘625 Patent), 6,900,124 (the ‘124 Patent), and 7,018,922 (the ‘922 Patent) (collectively, the Asserted Patents).  The complaint named as Respondents not only various Samsung entities who manufacture or distribute flash memory chips, but also downstream manufacturers and sellers of products incorporating such flash memory chips.  See our August 11, 2010 post for more information.

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