ALJs

ALJ Pender Sets 16-Month Target Date In Certain Handheld Magnifiers (337-TA-901)

By Eric Schweibenz
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Nov
21
Further to our November 12, 2013 and November 14, 2013 posts, on November 20, 2013, ALJ Thomas B. Pender issued Order No. 3 in Certain Handheld Magnifiers and Products Containing Same (Inv. No. 337-TA-901).

According to the Order, ALJ Pender set the target date for completion of this investigation as March 13, 2015 (which is approximately sixteen months after institution of the investigation).  In addition, ALJ Pender set the procedural schedule for the investigation and provided for the early exchange of claim terms and proposed constructions.  ALJ Pender also determined that a Markman hearing will commence on March 10, 2014; the evidentiary hearing will commence on July 8, 2014; and any final initial determination will issue no later than November 13, 2014.

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ALJ Shaw Denies Motion To Exclude Prior Art In Certain Digital Media Devices (337-TA-882)

By Eric Schweibenz
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Nov
22
On November 19, 2013, ALJ David P. Shaw issued Order No. 28 denying Complainant Black Hills Media, LLC’s (“BHM”) motion to exclude prior art, compel (or strike) interrogatory responses, and compel submission of an amended notice of prior art by Respondents Panasonic Corporation, Panasonic Corporation of North America, Samsung Electronics Co., Ltd., Samsung Electronics America, Inc., Samsung Telecommunications America, LLC, LG Electronics, Inc., LG Electronics U.S.A., Inc., LG Electronics MobileComm U.S.A., Inc., Toshiba Corporation, and Toshiba America Information Systems, Inc. (collectively, “Respondents”), and Intervenor Google Inc. (“Google”) in Certain Digital Media Devices, Including Televisions, Blu-Ray Disc Players, Home Theater Systems, Tablets and Mobile Phones, Components Thereof and Associated Software (Inv. No. 337-TA-882).

According to the Order, BHM argued that Respondents and Google obstructed BHM’s ability to investigate the asserted prior art by (1) improperly objecting to discovery relating to prior art that Respondents intended to use to support their invalidity contentions; (2) failing to timely produce documents or respond meaningfully to interrogatories relating to same; and (3) serving an “overly-inclusive” notice of prior art.  BHM thus requested that the ALJ order Respondents and Google to (1) withdraw reliance on any prior art they were not aware of more than 15 days prior to its production; (2) amend their joint notice of prior art and invalidity contentions to identify only those references on which they reasonably intend to rely at the hearing, limited to five references and three prior art combinations per patent; and (3) preclude any combinations not specifically described in detail in Respondents’ initial invalidity contentions.  Respondents and Google countered that they complied with every deadline regarding prior art and their invalidity positions.  The Commission Investigative Staff (“OUII”) also opposed the motion for the same reasons, adding that the volume of prior art asserted by Respondents and Google “is not disproportionate to the number of asserted claims,” which came to 137 references and 80 asserted claims.

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ALJ Lord Denies Motion To Terminate Investigation In Certain Multiple Mode Outdoor Grills (337-TA-895)

By Eric Schweibenz
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Nov
22
On November 19, 2013, ALJ Dee Lord issued Order No. 11 denying Complainants A&J Manufacturing, LLC and A&J Manufacturing, Inc.’s (collectively, “A&J”) motion to terminate the investigation in part with respect to Respondent Guangdong Canbo Electrical Co., Ltd. (“Canbo”) based on a consent order in Certain Multiple Mode Outdoor Grills and Parts Thereof (Inv. No. 337-TA-895).

By way of background, this investigation is based on a complaint filed by A&J alleging violation of Section 337 by over 20 proposed respondents in the importation and sale of certain multiple mode outdoor grills and parts thereof that infringe one or more claims of U.S. Patent Nos. 8,381,712, D660,646, and D662,773.  See our August 22, 2013 and September 23, 2013 posts for more details on the complaint and notice of investigation, respectively.

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ALJ Gildea Denies Motion To Preclude In Certain Wireless Communications Equipment (337-TA-866)

By Eric Schweibenz
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Nov
22
On November 19, 2013, ALJ E. James Gildea issued the public version of Order No. 58 (dated October 22, 2013) in Certain Wireless Communications Equipment and Articles Therein (Inv. No. 337-TA-866).

According to the Order, Complainants Samsung Electronics Co., Ltd. and Samsung Telecommunications America, LLC (collectively, “Samsung”) filed a motion to preclude Respondents Ericsson Inc. and Telefonaktiebolaget LM Ericsson (collectively, “Ericsson”) from offering certain prior art testimony.  Specifically, Samsung argued that Ericsson failed to timely disclose its intent to offer an Intel witness and, therefore, should be precluded from offering any Intel witness testimony at the evidentiary hearing.  In opposition, Ericsson asserted that they properly disclosed the Intel witness in their Pre-Hearing Statement.

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ALJ Gildea Rules On Discovery Motions In Certain Microelectromechanical Systems (337-TA-876)

By Eric Schweibenz
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Nov
22
On November 21, 2013, ALJ E. James Gildea issued the public versions of Order Nos. 43 and 45 (dated November 7, 2013 and November 8, 2013, respectively) in Certain Microelectromechanical Systems (“MEMS Devices”) and Products Containing the Same (Inv. No. 337-TA-876)

According to Order No. 43, nonparty GLOBALFOUNDRIES U.S. Inc. (“Nonparty”) filed a motion to limit and quash the subpoena duces tecum and ad testificandum served on it by Complainant STMicroelectronics, Inc. (“Complainant”).  Nonparty argued that most of the discovery sought by Complainant is in the possession of GLOBALFOUNDARIES Singapore (“GFS”), a related entity, and Nonparty lacked the ability to obtain the requested discovery.  Furthermore, Nonparty asserted that it should not have to produce documents that are duplicative of those produced by Respondent InvenSense, Inc. (“InvenSense”).  In opposition, Complainant argued that Nonparty is intimately involved in the dealings between GFS and InvenSense.  Additionally, Complainant asserted that Nonparty has a greater level of control over GFS materials than Nonparty claims.  Specifically, Complainant noted that Nonparty maintains a portal with access to GFS and can obtain data or documents on demand.

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ALJ Essex Grants-In-Part Motion To Compel In Certain Omega-3 Extracts From Marine Or Aquatic Biomass (337-TA-877)

By Eric Schweibenz
|
Nov
26
On November 22, 2013, ALJ Theodore R. Essex issued the public version of Order No. 32 (dated November 13, 2013) in Certain Omega-3 Extracts from Marine or Aquatic Biomass and Products Containing the Same (Inv. No. 337-TA-877).

According to the Order, Respondents Enzymotec Ltd.; Enzymotec USA; Olympic Seafood AS; Olympic Biotec Ltd.; Avoca, Inc.; Rimfrost USA, LLC; Bioriginal Food & Science Corp.; Aker BioMarine AS; Aker BioMarine Antarctic AS; and Aker BioMarine Antarctic USA, Inc. (collectively, “Respondents”) filed a motion to compel Complainants Neptune Technologies & Bioressources Inc. and Ascati Pharma Inc. (collectively “Neptune”) to produce certain documents and persons for depositions.  Specifically, Respondents sought depositions of Mr. St-Jean and Mr. Tremblay.  Followings the 16-day government shutdown, the parties provided the ALJ with a status update that withdrew Respondents request to compel the production of documents. 

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ALJ Lord Grants Motion To Amend Infringement Contentions In Certain Two-Way Global Satellite Communication Devices (337-TA-854)

By Eric Schweibenz
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Nov
27
On November 25, 2013, ALJ Dee Lord issued the public version of Order No. 21 (dated November 4, 2013) in Certain Two-Way Global Satellite Communication Devices, System and Components Thereof (Inv. No. 337-TA-854).

By way of background, ALJ Lord issued Order No. 17 denying Complainant BriarTek IP, Inc.’s (“BriarTek”) Motion for Leave to Amend Infringement Contentions because of concerns raised by Respondents DeLorme Publishing Company, Inc. and DeLorme InReach LLC (“DeLorme”) that the motion violated the protective order in the co-pending district court litigation.  Order No. 17 stated that BriarTek was free to re-file its motion after obtaining leave from the district court to use confidential material produced in the district court proceeding.

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ALJ Gildea Rules On Motions To Compel In Certain Consumer Electronics With Display And Processing Capabilities (337-TA-884)

By Eric Schweibenz
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Dec
02
On November 25, 2013, ALJ E. James Gildea issued the public versions of Order Nos. 37 and 38 (both dated November 14, 2013) in Certain Consumer Electronics with Display and Processing Capabilities (Inv. No. 337-TA-884).

According to Order No. 37, Complainant Graphics Properties Holdings, Inc. (“GPH”) filed a motion to compel Respondents Panasonic Corp. and Panasonic Corp. of America (collectively, “Panasonic”) to produce a witness knowledgeable about certain Panasonic source code.  GPH further requested that the deposition occur in the United States.  GPH argued that Panasonic’s deposition witness was unprepared to discuss the pertinent source code.  In opposition, Panasonic asserted that the deposition topic did not require any knowledge of the source code as long as the witness could discuss the “structure, function, operation, and implementation of” the application processor.  The Commission Investigative Staff (“OUII”) agreed with Panasonic’s argument.

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ALJ Shaw Denies Discovery Motions In Certain Digital Media Devices (337-TA-882)

By Eric Schweibenz
|
Dec
04
On December 3, 2013, ALJ David P. Shaw issued Order No. 30 in Certain Digital Media Devices, Including Televisions, Blu-Ray Disc Players, Home Theater Systems, Tablets and Mobile Phones, Components Thereof and Associated Software (Inv. No. 337-TA-882).

According to the Order, Non-party Amazon Digital Services, Inc. (“Amazon”) filed a motion to quash the subpoena duces tecum and ad testificandum issued by Complainant Black Hills Media, LLC (“BHM”).  In addition to opposing the motion, BHM filed a cross-motion for a recommendation that the ALJ certify a request to the Commission for enforcement of the subpoena.  In support of its Motion to Quash, Amazon asserted that the identified Amazon Cloud Player software does not include the functionality required by the asserted patents.  In opposition, BHM argued that Amazon’s substantive argument is not relevant to the discovery dispute and is “simply wrong.”

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ALJ Lord Grants Motion For Summary Determination Of Non-Infringement In Certain Mobile Handset Devices And Related Touch Keyboard Software (337-TA-864)

By Eric Schweibenz
|
Dec
04
On December 3, 2013, ALJ Dee Lord issued the public version of Order No. 21(dated September 24, 2013) in Certain Mobile Handset Devices and Related Touch Keyboard Software (Inv. No. 337-TA-864).

According to the Order, Respondent Shanghai HanXiang (CooTek) Information Technology Co., Ltd. (“CooTek”) filed a motion for summary determination that CooTek’s Series 5.5 and 5.6  products do not infringe the asserted claims of U.S. Patent Nos. 7,750,891 (the ‘891 patent), 7,098,896 (the ‘896 patent), and 7,453,439 (the ‘439 patent).  CooTek averred that Complainants Nuance Communications, Inc., Swype, Inc., and Tegic Communications, Inc.’s (“Nuance”) expert on the ‘891, ‘896, and ‘439 patents did not analyze the Series 5.5 and 5.6 products.  CooTek asserted that its technical expert opined that the Series 5.5 and 5.6 products do not infringe the ‘891, ‘896, and ‘439 patents.  Accordingly, CooTek argued that summary determination is appropriate because CooTek’s expert opinion that the Series 5.5 and 5.6 products do not infringe the ‘891, ‘896, and ‘439 patents is unrebutted.  In opposition, Nuance argued that if summary determination is granted, it should be limited to the specific versions of the Series 5.5 and 5.6 products at issue in the investigation.  The Commission Investigative Staff supported CooTek’s Motion for Summary Determination.

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ALJ Pender Sets Procedural Schedule In Certain Sleep-Disordered Breathing Treatment Systems (337-TA-890)

By Eric Schweibenz
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Dec
04
Further to our August 20, 2013 and September 26, 2013 posts, on December 2, 2013, ALJ Thomas B. Pender issued Order No. 5 in Certain Sleep-Disordered Breathing Treatment Systems and Components Thereof (Inv. No. 337-TA-890).

According to the Order, ALJ Pender set the procedural schedule for this investigation.  Specifically, ALJ Pender determined that a Markman hearing will commence on December 10, 2013; the evidentiary hearing will commence on April 10, 2014; and any final initial determination will issue no later than August 22, 2014.

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ALJ Bullock Terminates Investigation In Certain Laundry And Household Cleaning Products (337-TA-891)

By Eric Schweibenz
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Dec
05
On December 3, 2013, Chief ALJ Charles E. Bullock issued Order No. 10 in Certain Laundry And Household Cleaning Products and Related Packaging (Inv. No. 337-TA-891).

In the Order, ALJ Bullock granted a joint motion filed by Complainant The Clorox Company and Respondents Industrias Alen, S.A. de C.V. and Alen USA, LLC to terminate the investigation based on settlement agreement.

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ALJ Shaw Grants Motion To Compel In Certain Crawler Cranes (337-TA-887)

By Eric Schweibenz
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Dec
09
On December 4, 2013, ALJ David P. Shaw issued the public version of Order No. 9 in Certain Crawler Cranes and Components Thereof (Inv. No. 337-TA-887).

According to the Order, Complainant Manitowoc Cranes, LLC (“Manitowoc”) filed a motion to compel Respondents Sany Heavy Industry Co., Ltd. and Sany America, Inc. (collectively, “Sany”) to provide complete responses to certain interrogatories which Manitowoc alleged that Sany inappropriately refused to answer.  Manitowoc also asserted that many of Sany’s interrogatory responses failed to comply with Commission Rule 210.29(c) permitting interrogatories to be answered by specifying relevant records.

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ALJ Gildea Denies Summary Determination Regarding Unclean Hands And Standing In Certain Integrated Circuit Devices (337-TA-873)

By Eric Schweibenz
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Dec
09
On December 3, 2013, ALJ E. James Gildea issued the public version of Order No. 34 (dated November 14, 2013) in Certain Integrated Circuit Devices and Products Containing the Same (Inv. No. 337-TA-873).

According to the Order, Respondents LG Electronics, Inc.; LG Electronics U.S.A., Inc.; LG Electronics MobileComm U.S.A. Inc.; HTC Corporation; HTC America, Inc.; Motorola Mobility LLC; Nokia Corporation; Nokia, Inc.; Pantech Co., Ltd.; and Pantech Wireless, Inc. (collectively, “Respondents”) filed a motion for summary determination to terminate the investigation on the grounds that Complainant, Tela Innovations, Inc. (“Tela”), is guilty of unclean hands and lacked standing with respect to U.S. Patent Nos. 8,264,044 and 8,264,049 (collectively, “patents-at-issue”).  Respondents argued that ALJ Gildea should apply the doctrine of unclean hands and terminate the investigation because Tela filed its Complaint knowing that inventorship for the patents-at-issue was incorrect.  Additionally, Respondents asserted that the doctrine of unclean hands should apply because Tela knowingly hid the erroneous inventorship until after it corrected the inventorship issue on the eve of discovery closure.  Regarding standing, Respondents argued that the investigation must be terminated because Tela did not have standing to assert the patents-at-issue when it filed its complaint, and that Tela’s later-acquired patent assignment does not correct Tela’s lack of standing.  The Commission Investigative Staff agreed with Respondents’ argument that the investigation should be terminated with respect to the patents-at-issue because Tela lacked standing when it filed its complaint.

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ALJ Bullock Terminates Investigation As To Wheel Warehouse In Certain Tires (337-TA-894)

By Eric Schweibenz
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Dec
09
On December 3, 2013, Chief ALJ Charles E. Bullock issued Order No. 14 in Certain Tires and Products Containing Same (Inv. No. 337-TA-894).

In the Order, ALJ Bullock granted Complainants Toyo Tire & Rubber Co., Ltd., Toyo Tire Holdings of Americas Inc., Toyo Tire U.S.A. Corp., Nitto Tire U.S.A. Inc., and Toyo Tire North America Manufacturing Inc.'s (collectively, "Toyo") corrected motion to terminate the investigation as to Respondent Wheel Warehouse, Inc., a business name of SoCal Wheels, Inc. ("SoCal") based on a consent order stipulation.

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ALJ Bullock Finds Respondents In Default And Denies Motion To Terminate In Certain Tires (337-TA-894)

By Eric Schweibenz
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Dec
10
On December 6, 2013, Chief ALJ Charles E. Bullock issued Order No. 15 and Order No. 17 in Certain Tires and Products Containing Same (Inv. No. 337-TA-894).

According to Order No. 15, Complainants Toyo Tire & Rubber Co., Ltd.; Toyo Tire Holdings of Americas Inc.; Toyo Tire U.S.A. Corp.; Nitto Tire U.S.A. Inc.; and Toyo Tire North America Manufacturing Inc. (collectively, “Toyo”) filed a corrected motion to terminate the investigation as to Respondent Weifang Shunfuchang Rubber & Plastic Co., Ltd. (“Weifang”) based on a consent order stipulation.  ALJ Bullock observed that while the motion included the required statement under Commission Rule 210.21(c) that “there are no other agreements, written or oral, express or implied between Toyo and SoCal Wheels concerning the subject matter of this investigation,” the statement erroneously referred to Respondent “SoCal Wheels” instead of Weifang.  Accordingly, the motion was denied.

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ALJ Shaw Denies Motion For Leave To Late File Motions To Compel In Certain Digital Media Devices (337-TA-882)

By Eric Schweibenz
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Dec
11
On December 6, 2013, ALJ David P. Shaw issued Order No. 31 denying Complainant Black Hills Media, LLC's ("BHM") motion for leave to file out of time various motions to compel in Certain Digital Media Devices, Including Televisions, Blu-Ray Disc Players, Home Theater Systems, Tablets and Mobile Phones, Components Thereof and Associated Software(Inv. No. 337-TA-882).

According to the Order, BHM had filed three motions to compel against Respondents Samsung Electronics Co., Ltd.; Samsung Electronics America, Inc.; and Samsung Telecommunications America, LLC (collectively, "Samsung"); Respondents LG Electronics, Inc.; LG Electronics U.S.A., Inc.; and LG Electronics MobileComm U.S.A., Inc. (collectively, "LG"); and non-party Netflix, Inc. ("Netflix") 41 minutes after the deadline of 5:15 p.m. on November 1, 2013.  Soon after, BHM learned that the motions contained confidential business information of Samsung, LG and Netflix, and requested that the motions not be made available as public documents on EDIS.  BHM did not re-file the motions as confidential, and sent an email to Samsung, LG and Netflix on November 4, 5 and 11 regarding filing a motion for leave to late file the motions to compel.  The instant motion was filed on November 21.  BHM asserted that it "believed it had filed this motion for leave to file out of time on November 12, 2013, but due to internal miscommunication, it was not."  BHM argued that good cause exists to grant its motion for leave inasmuch as Samsung, LG and Netflix were not prejudiced by the late filing of the motions to compel, and because BHM spent significant time attempting to obtain the requested discovery through meet and confer efforts with Samsung, LG and Netflix.

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ALJ Essex Grants Motion To Compel In Certain Omega-3 Extracts From Marine Or Aquatic Biomass (338-TA-877)

By Eric Schweibenz
|
Dec
12
On December 9, 2013, ALJ Theodore R. Essex issued the public version of Order No. 35 (dated November 18, 2013) in Certain Omega-3 Extracts from Marine or Aquatic Biomass and Products Containing the Same (Inv. No. 337-TA-877).

According to the Order, Respondents Enzymotec Ltd.; Enzymotec USA; Olympic Seafood AS; Olympic Biotec Ltd.; Avoca, Inc.; Rimfrost USA, LLC; Bioriginal Food & Science Corp.; Aker BioMarine AS; Aker BioMarine Antarctic AS; and Aker BioMarine Antarctic USA, Inc. (collectively, “Respondents”) filed a motion to compel Complainants Neptune Technologies & Bioressources Inc. and Ascati Pharma Inc. (collectively “Neptune”) to produce Neptune’s CEO for deposition.  Respondents argued that Neptune’s CEO has unique personal knowledge of many topics important to the investigation, such as (1) the conception, reduction to practice, and development of the alleged inventions of the patents-in-suit; (2) Neptune’s manufacturing process; (3) alleged inequitable conduct during the prosecution of the patents-in-suit; (4) Neptune’s alleged domestic industry; and (5) Neptune’s assertions that an exclusion order against Respondents would be consistent with the public interest, including the reconstruction effort at Neptune’s Sherbrooke plant.  In opposition, Neptune maintained that their CEO is an “apex” employee and that Respondents have failed to demonstrate that he has unique knowledge warranting the burden of having him deposed.

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ALJ Bullock Grants-In-Part Motion To Amend Complaint And Notice Of Investigation In Certain Tires (337-TA-897)

By Eric Schweibenz
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Dec
12
On December 11, 2013, Chief ALJ Charles E. Bullock issued the public version of Order No. 11 (dated November 21, 2013) containing his Initial Determination granting-in-part Complainants Toyo Tire & Rubber Co., Ltd., Toyo Tire Holdings of America, Inc., Toyo Tire U.S.A. Corp., Nitto Tire U.S.A. Inc., and Toyo Tire North America Manufacturing Inc.'s (collectively, "Toyo") motion to amend the complaint and notice of investigation to add Shandong Hengyu Science & Technology Co., Ltd. ("Shandong"), Group A Wheels, and Auto Trend Tire and Wheel, Inc. ("Auto Trend") as Respondents in Certain Tires and Products Containing Same(Inv. No. 337-TA-894).

According to the Order, Toyo argued that when it filed the complaint, the only entity associated with the "TW" manufacturer code in the National Highway Traffic Safety Administration Manufacturers' Information Database ("NHTSA Database") was Respondent Weifang Shunfuchang Rubber & Plastic Co., Ltd. ("Weifang").  Toyo claimed that Weifang informed Toyo that it never produced the Pioneer A/T tire and with Weifang's assistance, Toyo subsequently learned that Shandong shares the "TW" manufacturer code.  Toyo therefore believed that Shandong, not Weifang, manufactures the accused Tri-Ace Pioneer A/T tire, and argued that Shandong's inclusion would help in obtaining discovery and affording Toyo "effective relief" by allowing adjudication in a single investigation.  The Commission Investigative Staff ("OUII") submitted that good cause existed to add Shandong because Toyo's prior reliance on incomplete information in the NHTSA Database appeared reasonable.  ALJ Bullock agreed with Toyo and OUII, noting that the procedural schedule was only recently set and discovery is in the early stages, and that Shandong will have adequate time to participate in the investigation and not suffer any prejudice by being added.  Accordingly, the ALJ granted the motion as to Shandong.

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ALJ Essex Denies Motion To Compel In Certain Omega-3 Extracts From Marine Or Aquatic Biomass (337-TA-877)

By Eric Schweibenz
|
Dec
13
On December 9, 2013, ALJ Theodore R. Essex issued the public version of Order No. 34 (dated November 15, 2013) in Certain Omega-3 Extracts from Marine or Aquatic Biomass and Products Containing the Same (Inv. No. 337-TA-877).

According to the Order, Complainants Neptune Technologies & Bioressources Inc. and Ascati Pharma Inc. (collectively, “Neptune”) filed a motion to compel Respondents Aker BioMarine AS, Aker BioMarine Antarctic AS, and Aker BioMarine Antarctic USA, Inc. (collectively, “Aker”) to produce documents and two witnesses for deposition regarding reexamination testing.  In a status update filed following the 16-day government shutdown, the parties noted that Neptune no longer sought to compel documents or one of the two witnesses; however, Neptune still sought to compel the deposition of J. Mitchell Jones.  According to Neptune, Mr. Jones improperly refused to respond to Neptune’s subpoena on the grounds that he “has no non-privileged information that is responsive or relevant.”  Neptune argued that they are entitled to probe his knowledge and privilege claims in a deposition, just as Aker did with Neptune’s reexamination counsel.  Neptune also asserted that Mr. Jones did not move to quash or sought to narrow the scope of the subpoena, and that any objections he may have had are therefore waived.  In opposition, Aker asserted that Neptune failed to meet and confer regarding the deposition of Mr. Jones, and that Neptune failed to demonstrate that any discovery from his deposition would be relevant to the investigation because Mr. Jones was only reexamination counsel for a patent related to the asserted patents (unlike reexamination counsel for Neptune who prosecuted the asserted patents and were deposed).

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