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ALJ Luckern Issues Initial Determination Granting Complainants’ Summary Determination Motion That A Domestic Industry Exists Based On Licensing Activities In Certain 3G Mobile Handsets (337-TA-613)

By Eric Schweibenz
|
Jul
29
On July 27, 2009, Chief ALJ Paul J. Luckern issued the heavily redacted public version of Order No. 42 (dated March 10, 2009) granting Complainants InterDigital Communications, LLC and InterDigital Technology Corp.’s (“InterDigital”) motion for summary determination that InterDigital’s U.S. licensing activities satisfy the domestic industry requirements of 19 U.S.C. § 1337(a)(3)(C) in Certain 3G Mobile Handsets and Components Thereof(Inv. No. 337-TA-613).

Respondents Nokia Inc. and Nokia Corporation (“Nokia”) opposed InterDigital’s summary determination motion on the basis that (1) the technical prong requires the existence of an article protected by the asserted patents; (2) InterDigital failed to demonstrate a nexus between the asserted patents and its licensing program; (3) a broad licensing program cannot satisfy the nexus requirement; (4) InterDigital failed to show that the asserted patents were important to its licensing program; (5) genuine issues of material fact existed as to whether InterDigital’s investments are substantial as required by section 337; and (6) InterDigital’s purported investment total includes activities beyond the asserted patents, such as licensing of other technology and activities prior to the issuance of the asserted patents.  According to the Order, the Commission Investigative Staff did not oppose InterDigital’s summary determination motion in view of ALJ Luckern’s Order No. 20 in Certain 3G Wideband Code Division Multiple Access (WCDMA) Handsets (Inv. No. 337-TA-601), which was adopted by the Commission, granting a motion for summary determination that a domestic industry can be established based solely on licensing activities. 
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ALJ Gildea Denies Motion To Strike Experts’ Hearing Testimony In Certain Laser Imageable Lithographic Printing Plates (337-TA-636)

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

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

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

The investigation is based on a July 2, 2009 complaint filed by eInstruction Corporation of Denton, Texas.  As we explained in our July 7 post, the complaint alleges violations of Section 337 in the importation into the U.S. and sale of certain products using collaborative system technology and components thereof that infringe U.S. Patent No. 6,390,673.
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ALJ Rogers Denies Motion For Protective Order In Certain Electronic Devices (337-TA-667/337-TA-673)

By Eric Schweibenz
|
Aug
06
On August 5, 2009, ALJ Robert K. Rogers, Jr. issued the public version of Order No. 21C (dated July 14, 2009) in Certain Electronic Devices, Including Handheld Wireless Communications Devices (Inv. No. 337-TA-667/337-TA-673).  In the Order, ALJ Rogers denied Respondent Palm, Inc.’s (“Palm”) motion for protective order to preclude Complainant Saxon Innovations, LLC (“Saxon”) from accusing the Palm Pre phone of infringement in this investigation.

By way of background, the procedural schedule in this investigation required the parties to serve responses to contention interrogatories on June 10, 2009.  Saxon served contention interrogatory responses on June 10, including a response to Palm’s interrogatory seeking identification of the accused Palm products.  On June 18, 2009, Saxon served a supplemental interrogatory response alleging for the first time that Palm’s Pre phone infringed U.S. Patent No. 5,530,597.
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ALJ Luckern Issues Public Version Of Initial Determination In Certain Liquid Crystal Display Modules (337-TA-634) Finding Violation Of Section 337

By Eric Schweibenz
|
Aug
07
Further to our June 16 post, on August 5, 2009, Chief ALJ Paul J. Luckern issued the public version of his Final Initial and Recommended Determinations (“ID”) in Certain Liquid Crystal Display Modules, Products Containing Same, and Methods For Using The Same (Inv. No. 337-TA-634).  The Complainant in this investigation is Sharp Corporation (“Sharp”) and the Respondents are Samsung Electronics Co., Ltd., Samsung Electronics America, Inc., and Samsung Semiconductor, Inc. (collectively, “Samsung”).

In the 209-page ID, ALJ Luckern held that there was a violation of Section 337 by Samsung for importation into the U.S., sale for importation, and sale within the U.S. after importation of infringing liquid crystal display devices and products containing Samsung’s devices, in connection with certain claims of U.S. Patent No. 7,304,703 (the ‘703 patent); U.S. Patent No. 6,879,364 (the ‘364 patent); U.S. Patent No. 6,952,192 (the ‘192 patent); and U.S. Patent No. 7,304,626 (the ‘626 patent).  Further, ALJ Luckern determined that Sharp met the domestic industry (technical prong) requirement for each of the patents-in-suit because Sharp’s domestic industry articles practiced at least one asserted claim for each patent.
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Law Firm’s Motion to Intervene and to Preclude Disclosure of Confidential Business Information Is Denied in Certain CCFL Inverter Circuits (337-TA-666)

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

Finnegan represents respondents Monolithic Power Systems, Inc., ASUSTeK Computer Inc., and ASUS Computer International America (collectively, “the MPS and ASUS respondents”) in the investigation.  Finnegan argued that Mercer has a conflict of interest that prevents him from serving as a technical consultant to complainants 02 Micro International Ltd. and 02 Micro Inc. (collectively, “O2 Micro”).  Mercer was retained by Finnegan to assist the firm in defending Sony in a patent infringement lawsuit in the Eastern District of Texas regarding three patents that, although different than the patent asserted in the investigation, share the same specification with the asserted patent.  Finnegan argued that Mercer was privy to Finnegan’s work product that is potentially applicable to defenses that MPS and ASUS may assert in this investigation, and that O2 Micro was seeking to gain an unfair advantage by gaining access to that work product.
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Update Regarding Certain Lighting Control Devices (337-TA-681)

By Eric Schweibenz
|
Aug
10
Further to our July 22 post, ALJ Robert K. Rogers, Jr. issued Order No. 4 on August 6, 2009 in Certain Lighting Control Devices Including Dimmer Switches and Parts Thereof (Inv. No. 337-TA-681).  In the Order, ALJ Rogers sets the procedural schedule for the investigation, including a March 8, 2010 start date for the evidentiary hearing.

Also, on August 6, ALJ Rogers issued Order No. 5 setting the target date for this investigation.  Specifically, ALJ Rogers set October 25, 2010 as the target date for completion of the investigation (which is 15 months after institution of the investigation).
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ALJ Charneski Issues Initial Determination Finding Violation Of Section 337 In Certain Variable Speed Wind Turbines (337-TA-641)

By Eric Schweibenz
|
Aug
10
On August 7, 2009, ALJ Carl C. Charneski issued a notice regarding his Initial Determination in Certain Variable Speed Wind Turbines and Components Thereof (Inv. No. 337-TA-641).

The Complainant in this investigation is General Electric Co. and the Respondents are Mitsubishi Heavy Industries, Ltd., Mitsubishi Heavy Industries America, Inc., and Mitsubishi Power System, Inc.  According to the notice, ALJ Charneski determined that a violation of Section 337 occurred with respect to Mitsubishi’s turbines.  In particular, ALJ Charneski held that Mitsubishi’s turbines infringe claim 121 of the asserted ‘039 patent, and claim 15 of the asserted ‘985 patent.  Additionally, while ALJ Charneski determined that Mitsubishi’s turbines infringed claims 5, 7, and 8 of the asserted ‘221 patent, he also determined that GE did not practice any claim of the asserted ‘221 patent for purposes of the domestic industry (technical prong) requirement.
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ALJ Essex Extends Target Date And Reschedules Hearing Dates In Certain Optoelectronic Devices (337-TA-669)

By Eric Schweibenz
|
Aug
12
On August 10, 2009, ALJ Theodore R. Essex issued Order No. 5 in Certain Optoelectronic Devices, Components Thereof, and Products Containing The Same (Inv. No. 337-TA-669).  In the Order, ALJ Essex extends the target date for this investigation by one month to July 12, 2010, and moves the hearing dates back by approximately one month to November 16-20, 2009.

According to the Order, the “ALJ’s docket has gotten increasingly busy – in addition to his responsibilities in other investigations, the ALJ has two final initial determinations in Investigation Nos. 337-TA-630 and 337-TA-657 and a remand initial determination in Investigation No. 337-TA-632 due prior to the hearing dates in this investigation as well as an evidentiary hearing in Investigation No. 337-TA-661, all of which are set to transpire before the hearing dates in this investigation.”
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ALJ Gildea Issues Public Version of Initial Determination in Certain Laser Imageable Lithographic Printing Plates (337-TA-636) Finding Violation of Section 337

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

The patents-in-suit are U.S. Patent Nos. 5,339,737 (the “‘737 patent”) and 4,487,338 (the “‘338 patent”), which are both generally directed to lithographic printing plates suitable for imaging with low-to-moderate power levels of near-infrared laser radiation.  In the 105-page ID, ALJ Gildea held that a violation of Section 337 occurred in the importation into the U.S., the sale for importation, or the sale within the U.S. after importation of certain laser imageable lithographic printing plates (the “accused products”) by reason of infringement of one or more of Claims 1, 10, and 27 of the ‘737 patent, and one or more of Claims 20, 21, and 23 of the ‘338 patent.  Further, ALJ Gildea found that a domestic industry exists with respect to the ‘737 and ‘338 patents.
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Update Regarding Certain Optoelectronic Devices (337-TA-669)

By Eric Schweibenz
|
Aug
14
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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
|
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
|
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
|
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
|
Aug
19
On August 17, ALJ E. James Gildea issued the public version of Order No. 16 (dated August 4, 2009) granting Complainants O2 Micro International Ltd. and O2 Micro Inc.’s motion to compel documents regarding sales information and possibly infringing products from Respondents LG Electronics Inc. and LG Electronics USA in Certain Cold Cathode Fluorescent Lamp (“CCFL”) Inverter Circuit and Products Containing the Same (Inv. No. 337-TA-666).

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

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

In support of its motion, O2 Micro argued that (1) MPS did not demonstrate the disputed document was privileged; and (2) even if the disputed document was privileged, the privilege was waived when MPS produced such document in prior litigation between the parties.  MPS, on the other hand, argued that (1) the disputed document was privileged and related to pending litigation in Taiwan; (2) the disputed document was inadvertently produced in the prior litigation and the instant investigation “because the prior production was re-produced en masse”; and (3) privilege was not waived because counsel for MPS promptly “clawed back” the disputed document during a June 2009 deposition and followed it up with notification in writing.  For its part, the Commission Investigative Staff argued that (1) MPS waived any privilege to the disputed document in light of the inadvertent production in the prior litigation; and (2) the ALJ should perform an in camera review of the disputed document to confirm that it is privileged.
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Update Regarding Certain Machine Vision Software And Systems (337-TA-680)

By Eric Schweibenz
|
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
|
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
|
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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Update Regarding Certain Articulated Coordinate Measuring Arms (337-TA-684)

By Eric Schweibenz
|
Aug
31
Further to our August 26 post, on August 28, 2009, ALJ Charles E. Bullock issued Order No. 1: Protective Order and Order No. 2: Notice of Ground Rules and Target Date and Order Setting Date for Submission of Discovery Statements in Certain Articulated Coordinate Measuring Arms and Components Thereof (Inv. No. 337-TA-684).

In Order No. 2, ALJ Bullock set December 28, 2010 as the target date for completion of the investigation (which is 16 months after institution of the investigation).  ALJ Bullock further indicated in the Order that the evidentiary hearing in this matter will start on March 1, 2010.  ALJ Bullock also directed the parties to submit a discovery statement on or before October 2, 2009.
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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.