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ALJ Luckern Rules On Motion To Quash Subpoena In Certain Adjustable Keyboard Support Systems (337-TA-670)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

By Eric Schweibenz
|
Sep
11
On September 9, 2009, ALJ E. James Gildea issued the public version of Order No. 25 in Certain Cold Cathode Fluorescent Lamp Inverter Circuits and Products Containing the Same (Inv. No. 337-TA-666).  In the Order, ALJ Gildea granted Complainants’ O2 Micro International Ltd. and O2 Micro Inc. (collectively, “O2 Micro”) and Respondents’ LG Display Co., Ltd. and LG Display America, Inc.’s (collectively, “LGD”) joint motion seeking termination of the investigation with respect to LGD.  The motion was based on a consent order stipulation (“Stipulation”).

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

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

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

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

According to the Order, ALJ Gildea has provided dates in the procedural schedule for submission of proposed claim constructions for disputed claim terms and noted that “absent a showing of good cause, the parties will be bound by their proposed constructions for disputed claim terms on the date the joint submission of disputed claim terms is due.”
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ALJ Gildea Sets Target Date In Certain Video Displays (337-TA-687)

By Eric Schweibenz
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Sep
21
Further to our September 14 and September 17 posts, ALJ E. James Gildea issued Order No. 1: Protective Order; and Order No. 2: Notice of Ground Rules and Setting Target Date and Date for Submission of Proposed Procedural Schedule in Certain Video Displays, Components Thereof, and Products Containing Same (Inv. No. 337-TA-687).

In Order No. 2, ALJ Gildea set January 18, 2011 as the target date for completion of the investigation (which is 16 months after institution of the investigation).  Also, any final initial determination is due to be issued no later than September 18, 2010.
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ALJ Rogers Sets Target Date In Certain Bulk Welding Wire Containers (337-TA-686)

By Eric Schweibenz
|
Sep
21
On September 18, 2009, ALJ Robert K. Rogers, Jr. issued Order No. 7: Setting Target Date in Certain Bulk Welding Wire Containers and Components Thereof and Welding Wire (Inv. No. 337-TA-686).

According to the Order, the Initial Determination will be due on August 9, 2010, and the target date for completion of this investigation is December 7, 2010 (which is 15 months after institution of the investigation).
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Update Regarding Certain Bulk Welding Wire Containers (337-TA-686)

By Eric Schweibenz
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Sep
22
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ALJ Luckern Issues Public Version Of Initial Determination Finding No Violation In Certain 3G Mobile Handsets (337-TA-613)

By Eric Schweibenz
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Sep
23
Further to our August 17 post, on September 17, 2009, Chief ALJ Paul J. Luckern issued the heavily redacted public version of his 245 page August 14, 2009 Final Initial and Recommended Determinations (“ID”) in Certain 3G Mobile Handsets and Components (Inv. No. 337-TA-613).

By way of background, InterDigital Communications, LLC and InterDigital Technology Corp. (“InterDigital”) filed a complaint against Nokia Inc. and Nokia Corp. (“Nokia”) in August 2007 alleging that importation, sale for importation, and sale within the U.S. after importation of certain 3G mobile handsets and components infringed InterDigital’s ‘004, ‘966, ‘847 and ‘579 patents.  According to the ID, ALJ Luckern found no violation of Section 337, determined that the asserted claims are not invalid and not infringed, and also determined that a domestic industry exists with respect to the patents-in-suit.
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ALJ Luckern Issues Enforcement Initial Determination Finding No Violation Of Consent Order In Certain R-134a Coolant (337-TA-623)

By Eric Schweibenz
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Sep
24
On September 21, 2009, Chief ALJ Paul J. Luckern issued a notice regarding his Enforcement Initial Determination (“EID”) in Certain R-134a Coolant (Otherwise Known as 1,1,1,2-Tetrafluoroethane) (Inv. No. 337-TA-623).  In the notice, ALJ Luckern determined that the enforcement respondent Sinochem Environmental Protection Chemicals (Taicang) Co., Ltd. (“Sinochem”) did not violate the Consent Order issued by the Commission on September 11, 2008.

By way of background, INEOS Fluor Holdings Ltd., INEOS Fluor Ltd. and INEOS Fluor Americas LLC (collectively, “INEOS”) filed a complaint in December 2007 alleging violations of Section 337 by several respondents including Sinochem in the importation into the U.S., the sale for importation, and the sale within the U.S. after importation of certain R-134a coolant (otherwise known as 1,1,1,2-tetrafluoroethane) by reason of infringement of certain patents, including U.S. Patent No. 5,559,276.  See our April 6 post for more details.  On August 15, 2008, the Sinochem respondents moved for partial termination of the investigation based on the entry of a consent order specific to their “old” process for manufacture of R-134a coolant.  On August 20, 2008, the ALJ issued an initial determination (“ID”) granting the motion and terminating the investigation with respect to the “old” process.  The Commission determined not to review the ALJ’s ID and issued a Consent Order on September 11, 2008.  On December 12, 2008, INEOS filed a complaint, requesting that the Commission institute a formal enforcement proceeding to investigate an alleged violation of the Consent Order relating to the “old” process.  On February 18, 2009, the Commission issued a notice instituting a formal enforcement proceeding.
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ALJ Essex Issues Public Version of Initial Determination Finding No Violation In Certain Semiconductor Chips (337-TA-630)

By Eric Schweibenz
|
Oct
01
Further to our September 1 post, on September 24, 2009, ALJ Theodore R. Essex issued the public version of his Final Initial and Recommended Determinations (“ID”) in Certain Semiconductor Chips With Minimized Chip Package Size and Products Containing Same (Inv. No. 337-TA-630).  The Complainant in this investigation is Tessera, Inc. (“Tessera”) and the Respondents are Acer, Inc., Acer America Corporation, Elpida Memory, Inc., Elpida Memory (USA) Inc., Kingston Technology Corporation, Nanya Technology Corporation, Nanya Technology Corporation U.S.A., Powerchip Semiconductor Corporation, ProMOS Technologies, Inc., Ramaxel Technology, Ltd., Centon Electronics, Inc., SMART Modular Technologies, Inc., TwinMOS Technologies, Inc., and TwinMOS Technologies USA Inc. (collectively, “Respondents”).

In the 185-page ID, ALJ Essex determined 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 semiconductor chips with minimized chip package size and products containing same in connection with certain claims of U.S. Patent No. 5,663,106 (the ‘106 patent), U.S. Patent No. 5,679,977 (the ‘977 patent), and U.S. Patent No. 6,133,627 (the ‘627 patent).  Further, ALJ Essex determined that a domestic industry exists that practices the patents-in-suit.
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ALJ Bullock Sets Procedural Schedule In Certain Products Advertised As Containing Creatine Ethyl Ester (337-TA-679)

By Eric Schweibenz
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Oct
01
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ALJ Gildea Denies Three Motions in Certain Cold Cathode Fluorescent Lamp (“CCFL”) Inverter Circuits (337-TA-666)

By Eric Schweibenz
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Oct
02
On September 30, 2009, ALJ E. James Gildea issued the public version of Order No. 29 in Certain Cold Cathode Fluorescent Lamp (“CCFL”) Inverter Circuits and Products Containing the Same (Inv. No. 337-TA-666).  In the Order, ALJ Gildea denied: (1) respondents Asustek Computer, Inc.’s, Asus Computer International’s, and Monolithic Power Systems, Inc.’s (collectively, “Respondents”) motion to strike the rebuttal expert report of complainants O2 Micro International Ltd.’s and O2 Micro Inc.’s  (collectively, “O2 Micro”) expert witness and prevent him from testifying at the evidentiary hearing about the contents of his report; (2) O2 Micro’s motion to strike the expert report of Respondents’ expert witness and prevent him from testifying at the evidentiary hearing about the contents of his report; and (3) O2 Micro’s motion for summary determination as to the invention date of one of the asserted patents in the investigation and to strike any portions of any expert reports that challenge that invention date.

As to the first motion, Respondents argued that O2 Micro’s expert report should be stricken because O2 Micro had failed to disclose its expert at the time set forth in the Ground Rules.  O2 Micro responded that its expert report was a timely opposition to an expert report submitted by Respondents’ expert.  According to O2 Micro, Respondents’ expert report contained unanticipated arguments and therefore O2 Micro could not have disclosed its rebuttal expert at the time set forth in the Ground Rules.  O2 Micro argued that it promptly disclosed its expert as soon as it was aware that his testimony would be needed to refute the unanticipated arguments in Respondents’ expert report.  The Commission Investigative Staff (“the Staff”) agreed with O2 Micro that Respondents’ expert report covered “unexpectedly raised” topics that merited a rebuttal expert report, and therefore opposed Respondents’ motion.
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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.