ALJs

Update Regarding Certain Energy Drink Products (337-TA-678)

By Eric Schweibenz
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Jul
08
Further to our June 15 post, on July 7, 2009, Chief ALJ Paul J. Luckern issued Order No. 4 in Certain Energy Drink Products (337-TA-678).

According to the Order, ALJ Luckern set September 17, 2010 as the target date for completion of this investigation (which is 15 months after institution of the investigation).  ALJ Luckern further indicated that any final initial determination on violation should be filed no later than May 17, 2010.  In addition, ALJ Luckern noted that the evidentiary hearing in this matter will commence on February 16, 2010.

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ITC Decides Not To Review Initial Determination In Certain Composite Wear Components (337-TA-644)

By Eric Schweibenz
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Jul
08
On July 7, 2009, the International Trade Commission issued a notice determining not to review the May 8, 2009 Initial Determination (“ID”) issued by ALJ Theodore R. Essex in Certain Composite Wear Components and Products Containing Same (337-TA-644).

In the ID, ALJ Essex found respondents AIAE Engineering Limited and Vega Industries (collectively, “respondents”) in default under Commission Rule 210.16(a)(2) based on respondents failure to participate in discovery.  ALJ Essex further found that respondents’ conduct in the investigation warranted adverse inferences under Commission Rule 210.17, and on that basis found respondents in violation of Section 337.

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ITC Modifies Certain Claim Constructions And Remands Investigation To ALJ Essex In Certain Refrigerators (337-TA-632)

By Eric Schweibenz
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Jul
08
On July 8, 2009, the U.S. International Trade Commission issued a Notice of its decision to modify certain claim constructions made in the final initial determination; an Order remanding the case to Administrative Law Judge Theodore R. Essex to make findings regarding infringement, validity, and domestic industry that are consistent with the modified claim constructions; and an Opinion setting forth the modified claim constructions in Certain Refrigerators and Components Thereof(Inv. No. 337-TA-632).

The investigation was instituted on February 21, 2008, based on the complaint of Whirlpool Corp., Whirlpool Manufacturing Corp., Whirlpool Patent Corp., and Maytag Corp. (collectively “Whirlpool”).  The respondents are LG Electronics Corp., Inc., LG Electronics, USA, Inc., and LG Electronics Monterrey, Mexico S.A. de C.V. (collectively “LG”).

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ALJ Rogers Denies Joint Motion To Terminate Investigation In Certain Non-Shellfish Derived Glucosamine (337-TA-668)

By Eric Schweibenz
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Jul
14
On July 9, 2009, ALJ Robert K. Rogers, Jr. issued the public version of Order No. 23 (dated June 29, 2009) in Certain Non-Shellfish Derived Glucosamine and Products Containing Same (337-TA-668).  In the Order, ALJ Rogers (i) denied a joint motion filed by complainant Cargill, Inc. (“Cargill”) and respondent Ethical Naturals, Inc. (“ENI”) to terminate the investigation as to respondent ENI, and (ii) granted a joint motion for leave filed by Cargill and ENI to not serve the remaining respondents with certain portions of the settlement agreement between Cargill and ENI (the “Settlement Agreement”).

According to the Order, the ITC’s rules provide that “in the case of a proposed termination by settlement agreement, the parties may file statements regarding the impact of the proposed termination on the public interest, and the [ALJ] may hear argument, although no discovery may be compelled, with respect to issues relating solely to the public interest.”  In connection with their joint motion to terminate, Cargill and ENI asserted that the Settlement Agreement is consistent with the public interest.  The Commission Investigative Staff opposed the motion to terminate, arguing that the Settlement Agreement did not promote the public interest.

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ALJ Essex Issues Initial Determination Terminating Investigation In Certain Active Comfort Footwear (337-TA-660)

By Eric Schweibenz
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Jul
14
On July 13, 2009, ALJ E. James Gildea issued the public version of Order No. 12 in Certain Active Comfort Footwear (337-TA-660).  In the Order, ALJ Gildea granted Complainants Masai Marketing & Trading AC and Masai USA Corp.’s (“Masai”) (1) motion to terminate the Investigation in its entirety by reason of confidential settlement agreement with Respondent RYN Korea Co. Ltd. (“RYN”), and (2) motion to withdrawal its Complaint against the remaining respondents The Tannery (“Tannery”) and A Better Way to Health (“Better Way”).

According to the Order, while Complainants only settled with RYN and not the other named respondents (Tannery and Better Way), Masai requested that the investigation be terminated with respect to all respondents because “RYN is the only producer of the accused products in this Investigation.”  The Commission Investigative Staff supported the termination motion and did not oppose the withdrawal motion.

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ALJ Rogers Issues Initial Determination Terminating Investigation In Certain Lighting Control Devices (337-TA-676)

By Eric Schweibenz
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Jul
15
On July 14, 2009, ALJ Robert K. Rogers, Jr. issued the public version of Order No. 8 in Certain Lighting Control Devices Including Dimmer Switches and Parts Thereof (337-TA-676).  In the Order, ALJ Rogers granted complainant Lutron Electronics Co., Inc. (“Lutron”) and respondent Universal Smart Electric Corp.’s (“Universal”) joint motion to terminate the investigation based on a Consent Order.

In view of the Commission Investigative Staff’s support of the joint motion, an agreement between Lutron and Universal, and the fact that Universal was the sole respondent in this investigation, ALJ Rogers determined that “termination of this investigation is in the public interest and does not impose any undue burdens on the public health and welfare, competitive conditions in the United States economy, the production of like or directly competitive articles in the United States, and United States consumers.”

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ALJ Charneski Issues Stay As To Qimonda AG In Certain Semiconductor Integrated Circuits Using Tungsten Metallization (337-TA-648)

By Eric Schweibenz
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Jul
16
On July 15, 2009, ALJ Carl C. Charneski issued Order No. 110 in Certain Semiconductor Integrated Circuits Using Tungsten Metallization and Products Containing Same (337-TA-648).  In the Order, ALJ Charneski stayed the investigation as to respondent Qimonda AG (“Qimonda”) in view of a July 2, 2009 Order issued by the U.S. Bankruptcy Court for the Eastern District of Virginia (the “Bankruptcy Court”).

In the Order, ALJ Charneski noted that the Bankruptcy Court issued a preliminary injunction ordering that the ITC investigation be stayed with respect to Qimonda “pending a determination on the Recognition Order.” ALJ Charneski further noted that the “Bankruptcy Court’s Order does not extend to any of the other respondents in this investigation” and “the hearing in this investigation will commence on July 20, 2009.”

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ALJ Luckern Issues Public Version Of Enforcement Initial Determination In Certain Ink Cartridges (337-TA-565)

By Eric Schweibenz
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Jul
16
On July 14, 2009, Chief ALJ Paul J. Luckern issued the public version of the April 17, 2009 Enforcement Initial Determination (“ED”) in Certain Ink Cartridges and Components Thereof (337-TA-565).  See our April 21 post.  The underlying investigation was requested by Complainants Seiko Epson Corporation, Epson America, Inc., and Epson Portland Inc. (“Epson”).

The ED found that certain Respondents violated a Limited Exclusion Order, a General Exclusion Order and a Cease and Desist Order issued by the Commission on October 19, 2007.  The Respondents at issue were Ninestar Technology Co. Ltd. and Ninestar Technology Company Ltd. (collectively, “Ninestar”), Town Sky Inc., Mipo International, Ltd. and Mipo America, Ltd. (collectively, “Mipo”), Ribbon Tree (USA) Inc. and Apex Distributing, Inc.

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ALJ Essex Sets Target Date In Certain Course Management System Software Products (337-TA-677)

By Eric Schweibenz
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Jul
21
On July 20, 2009, ALJ Theodore R. Essex issued Order No. 4 in Certain Course Management System Software Products (Inv. No. 337-TA-677) setting the target date for completing the investigation.

According to the Order, ALJ Essex set October 12, 2010 as the target date (which is 16 months after institution of the investigation).  ALJ Essex further indicated that any final initial determination on violation should be filed no later than June 9, 2010.  In addition, ALJ Essex noted that the evidentiary hearing in this matter will commence on February 22, 2010.  In the Order, ALJ Essex also observed that these target and hearing dates might be extended if he grants a currently pending motion to stay the investigation in light of a reexamination proceeding at the U.S. Patent and Trademark Office, and an appellate proceeding before the U.S. Court of Appeals for the Federal Circuit.

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ALJ Essex Issues Recommended Determination That The Commission Should Grant In Part Complainant’s Motion for Attorney’s Fees And Sanctions in Certain Composite Wear Components (337-TA-644)

By Eric Schweibenz
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Jul
21
On July 20, 2009, ALJ Theodore R. Essex issued the public version of a Recommended Determination (“RD”) that the International Trade Commission grant Complainant Magotteaux International S/A and Magotteaux, Inc. (collectively “Magotteaux”) attorney’s fees incurred in responding to the Commission Investigative Staff’s (“Staff”) Motion for Initial Determination finding Respondents AIA Engineering Limited and Vega Industries (collectively “Respondents”) in Default and in preparing Magotteaux’s own Motion for Default and Adverse Inferences in Certain Composite Wear Components and Products Containing Same (Inv. No. 337-TA-644).

As indicated in our July 8 post, ALJ Essex issued an Initial Determination (“ID”) on May 8, 2009 finding Respondents in default under Commission Rule 210.16(a)(2) based on failure to participate in discovery, that Respondents’ conduct in the investigation warranted adverse inferences under Commission Rule 210.17, and that Respondents were in violation of Section 337 on that basis.  On July 7, 2009, the Commission issued a notice determining not to review the ID, and requesting written submissions regarding the form of remedy, if any, that should be ordered.

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ITC Institutes Investigation Regarding Certain Lighting Dimmer Switches And Parts Thereof (337-TA-681)

By Eric Schweibenz
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Jul
22
On July 20, 2009, the U.S. International Trade Commission voted to institute an investigation of Certain Lighting Control Devices Including Dimmer Switches and Parts Thereof (337-TA-681).

The investigation is based on a June 23, 2009 complaint filed by Lutron Electronics Co., Inc.  As we explained in our June 25 post, the complaint alleges that Neptun Light, Inc. (“Neptun”) of Lake Bluff, Illinois unlawfully imports into the U.S., sells for importation, or sells within the U.S. after importation certain lighting control devices and parts thereof that infringe certain claims of U.S. Patent No. 5,637,930 (“the ‘930 patent”).

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ALJ Bullock Issues Public Version of Initial Determination in Certain Probe Card Assemblies (337-TA-621) Finding No Violation of Section 337

By Eric Schweibenz
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Jul
23
Further to our June 29, 2009 post, on July 20, ALJ Charles E. Bullock issued the public version of his initial determination (“ID”) in the matter of Certain Probe Card Assemblies, Components Thereof and Certain Probe Card Assemblies, Components Thereof and Certain Tested DRAM and NAND Flash Memory Devices and Products Containing Same (Inv. No. 337-TA-621).

In the 205-page ID, ALJ Bullock held that there was no violation of Section 337 by respondents Phicom Corp. and Phiam Corp. (collectively, “Phicom”), and Micronics Japan Co., Ltd., and MJC Electronics Corp. (collectively, “Micronics”) for importation into the U.S., the sale for importation, or the sale within the U.S. after importation of certain probe card assemblies and components thereof, certain probe card assemblies and components thereof, and certain tested DRAM and NAND flash memory devices and products containing same, in connection with claims 1, 3, 4, 18, 19, 23, 24, 29, 32, 33, 36, 37, and 41 of U.S. Patent No. 6,615,485 (the ‘485 patent); claims 1-3, 12, 24, and 25 of U.S. Patent No. 6,509,751 (the ‘751 patent); claim 19 of U.S. Patent No. 7,225,538 (the ‘538 patent); and claims 21-23, 27-37, and 33-35 of U.S. Patent No. 5,994,152 (the ‘152 patent).  Further, the ALJ determined that FormFactor, Inc. had satisfied the domestic industry requirement with respect to the ‘751 patent, but that it had not satisfied the domestic industry requirement for the ‘485, ‘538, and ‘152 patents.

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ALJ Rogers Grants-In-Part and Denies-In-Part Motion For Leave To Submit Supplemental Notice Of Prior Art In Certain Electronic Devices (337-TA-673/667)

By Eric Schweibenz
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Jul
24
On July 22, 2009, ALJ Robert K. Rogers, Jr. issued Order No. 24C in Certain Electronic Devices, Including Handheld Wireless Communications Devices (Inv. Nos. 337-TA-673 and 337-TA-667).  In the Order, ALJ Rogers granted-in-part and denied-in-part a motion for leave to submit a supplemental notice of prior art filed by respondents Samsung Electronics Co., Ltd., Samsung Electronics America, Inc., and Samsung Telecommunications America, LLP’s (collectively “Samsung”).

Samsung filed its motion for leave on July 9, 2009, seeking to add eight prior art references relating to complainant Saxon Innovations, LLC’s (“Saxon”) U.S. Patent No. 5,530,597 and two prior art references relating to Saxon’s U.S. Patent No. 5,608,873.  Samsung argued that Saxon had supplemented its contention interrogatory responses at a late date and that, in light of Saxon’s new contentions, Samsung had discovered the ten new prior art references.  Further, Samsung asserted that it acted promptly by providing notice of the new references to the parties, supplementing its own invalidity contention interrogatory responses, and filing the instant motion for leave.

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ALJ Essex Issues Initial Determination Staying Investigation In Course Management System Software Products (337-TA-677) Pending Decision By Federal Circuit

By Eric Schweibenz
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Jul
27
On July 24, 2009, ALJ Theodore R. Essex issued Order No. 5 in Certain Course Management System Software Products (Inv. No. 337-TA-677), staying the investigation pending a decision from the Federal Circuit in an appeal between the same parties on the identical patent that is the subject of the 677 investigation.

As we explained in our April 22 and June 5 posts, Complainant Blackboard, Inc. (“Blackboard”) accused respondent Desire2Learn Incorporated (“D2L”) of violating Section 337 based on infringement of U.S. Patent No. 6,988,138 (“the ‘138 patent”).  The ‘138 patent is currently involved in a reexamination proceeding at the U.S. Patent and Trademark Office and an appellate proceeding before the Court of Appeals for the Federal Circuit.

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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
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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 Charneski Rules On Motion To Compel In Certain Cast Steel Railway Wheels (337-TA-655)

By Eric Schweibenz
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Jul
28
On July 27, 2009, ALJ Carl C. Charneski issued the public version of Order No. 26 (dated June 22, 2009) in Certain Cast Steel Railway Wheels, Certain Processes For Manufacturing Or Relating To Same And Certain Products Containing Same (Inv. No. 337-TA-655).  In the Order, ALJ Charneski granted-in-part Complainant Amsted Industries, Inc.’s (“Amsted”) motion to compel Respondents Standard Car Truck Company, Inc. and Barber Tianrui Railway Supply, LLC (collectively, “SCT”) to produce certain documents created after Amsted’s August 14, 2008 complaint. 

While ALJ Charneski determined that Amsted’s motion to compel was “overly broad,” he granted the motion with respect to those document requests supported by the Commission Investigative Staff (the “Staff”).  The Staff asserted that 11 of the 17 document requests identified by Amsted in its motion to compel sought documents relevant to the investigation.  ALJ Charneski granted the motion with respect to Amsted’s requests regarding (1) “certifications by the American Association of Railroads, pricing or market information, information provided to customers, and sales plans, strategic plans and similar documents, pertaining to cast steel railway wheels manufactured by Tianrui Group Foundry Company Limited”; and (2) “training or education relating to cast steel railway wheels that respondents have provided to their employees.”

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ALJ Charneski Denies Motion To Terminate Investigation In Certain Cast Steel Railway Wheels (337-TA-655)

By Eric Schweibenz
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Jul
28
On July 27, 2009, ALJ Carl C. Charneski issued the public version of Order No. 14 (dated February 27, 2009) in Certain Cast Steel Railway Wheels, Certain Processes For Manufacturing Or Relating To Same And Certain Products Containing Same (Inv. No. 337-TA-655).  In the Order, ALJ Charneski denied Respondent Tianrui Group Foundry Limited’s (“Tianrui Foundry”) motion to terminate the investigation based on its assertion that Complainant Amsted Industries Incorporated’s (“Amsted”) complaint did not allege a claim upon which relief can be granted.

By way of background, Amsted filed a complaint against Tianrui Foundry, Tianrui Group Company Limited, Standard Car Truck Company, and Barber Tianrui Railway Supply, LLC (collectively, “Respondents”) alleging violation of section 337 based on the importation and sale of Tianrui Wheels manufactured through a process that allegedly uses Amsted’s misappropriated trade secrets (the “ABC Trade Secrets”).  Amsted’s complaint further alleges that Respondents recruited nine former employees of Datong ABC Castings Company Limited, a licensee of Amsted’s ABC Technology located in China, for the purpose of acquiring the ABC Trade Secrets.

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ALJ Charneski Denies Motion To Compel In Certain Cast Steel Railway Wheels (337-TA-655)

By Eric Schweibenz
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Jul
28
On July 27, 2009, ALJ Carl C. Charneski issued the public version of Order No. 23 (dated April 24, 2009) in Certain Cast Steel Railway Wheels, Certain Processes For Manufacturing Or Relating To Same And Certain Products Containing Same (Inv. No. 337-TA-655).  In the Order, ALJ Charneski denied Respondents Standard Car Truck, Inc., Barber Tianrui Railway Supply, Tianrui Group Company Limited, and Tianrui Group Foundry Company Limited’s (collectively, “Respondents”) motion to compel.

In their motion, Respondents sought an order from ALJ Charneski compelling Complainant Amsted Industries Incorporated (“Amsted”) to provide a list of the “Griffin Trade Secrets.”  Amsted and the Commission Investigative Staff (the “Staff”) opposed Respondents’ motion.  Specifically, Amsted argued that the disputed discovery request had been “sufficiently answered” since it previously produced documents and things relating to “Griffin Wheel’s Kansas City, Kansas, cast steel railway facility and allowed [R]espondents to inspect that facility.”  Amsted further argued that “this investigation is an unfair-competition-based investigation brought under Section 337(a)(1)(A) and involves the Respondents’ misappropriation of certain ABC trade Secrets.”

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ALJ Luckern Grants Motion To Modify The Protective Order In Certain Energy Drink Products (337-TA-678)

By Eric Schweibenz
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Jul
29
On July 28, 2009, Chief ALJ Paul J. Luckern issued Order No. 8 in Certain Energy Drink Products (Inv. No. 337-TA-678).  In the Order, ALJ Luckern granted complainants Red Bull GmbH and Red Bull North America, Inc.’s (collectively, “Red Bull”)  motion to modify the protective order (Order No. 2) to address the inadvertent disclosure of documents and things subject to the attorney-client privilege or work product immunity by adding a claw-back provision.  Respondents India Imports Inc., Washington Food and Supply of D.C., Inc., and Vending Plus, Inc. (collectively, “Respondents”) opposed the motion, and the Commission Investigative Staff did not take a position on the motion.

In the Order, ALJ Luckern acknowledged that he has included similar claw-back provisions in the past, but never where there was opposition to such provision.  As stated in the Order, Respondents argued that the inclusion of the proposed claw-back provision would invite discovery abuses and that the proposed claw-back provision is “a rule that confers the greatest benefits on the party with the largest number of documents to produce, viz. complainants.”  ALJ Luckern noted that the proposed claw-back provision is standard in protective orders in both federal district court cases and section 337 investigations, and further noted that Red Bull had represented that they have reviewed their documents for privilege prior to producing them.

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