Commission Notices

ITC Decides Not To Review Initial Determination Terminating Investigation In Certain Devices With Secure Communication Capabilities (337-TA-818)

By Eric Schweibenz
|
Aug
28
On August 20, 2012, the International Trade Commission (“Commission”) issued a notice determining not to review ALJ David P. Shaw’s July 18, 2012 initial determination (“ID”) terminating the investigation due to Complainant’s lack of standing in Certain Devices with Secure Communications Capabilities, Components Thereof, and Products Containing the Same and Cameras (Inv. No. 337-TA-818). By way of background, this investigation was based on a November 4, 2011 complaint filed by VirnetX, Inc., of Zephyr Cove, Nevada, (“VirnetX”) alleging violation of Section 337 by Apple, Inc. (“Apple”) by infringement of U.S. Patent No. 8,051,181 (the ‘181 patent).  See our November 8, 2011 post for more details. According to the notice, ALJ Shaw issued an ID on July 18, 2012, granting Apple’s April 30, 2012 motion to terminate the investigation based on VirnetX’s lack of standing.  ALJ Shaw determined that VirnetX did not possess all substantial rights in the ‘181 patent.  In addition to the ID, ALJ Shaw issued Order No. 14 on the same day  denying VirnetX’s renewed motion to amend the complaint and add SAIC as a complainant.  On July 27, 2012, VirnetX petitioned for review of the ALJ’s ID and Order No. 14, and Apple opposed on August 3, 2012. After reviewing the record, including the parties’ briefing, the Commission determined not to review the ALJ’s ID or Order No. 14 and thereby terminated the investigation.
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ITC Reviews And Affirms Summary Determination In Certain Drill Bits (337-TA-844)

By Eric Schweibenz
|
Aug
29
On August 22, 2012, the International Trade Commission (“Commission”) issued a notice determining to review ALJ Robert K. Roger’s July 10, 2012 initial determination (“ID”) granting Respondents’ motion for summary determination of no importation and terminating the investigation in Certain Drill Bits and Products Containing Same  (Inv. No. 337-TA-844). By way of background, this investigation was based on an April 25, 2012 complaint filed by Boart Longyear Company and Longyear TM, Inc.—against Boyles Bros Diamantina S.A. of Peru, Christensen Chile S.A. of Chile, Diamantina Christensen Trading Inc. of Panama, and Intermountain Drilling Supply Corp. of West Valley City, Utah for alleged infringement of U.S. Patent Nos. 7,828,090; 7,874,384; and/or 8,051,929 relating to certain drill bits and products containing same.  See our April 26, 2012 post for more details. According to the notice, the Commission reviewed and affirmed ALJ Roger’s grant of summary determination of no importation, however the Commission did not adopt any statements in the ID to the effect that the determination was based on jurisdictional grounds.  Instead, the Commission found that the ALJ’s determination appropriately considered the merits and affirmed the determination on those merits.  The Commission therefore terminated this investigation but stated that Complainants may re-file their complaint if they can allege that Respondents import the subject drill bit products into the United States, sell them for importation, or sell them within the U.S. after the asserted patents issued.
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ITC Affirms ALJ Essex’s Decision To Stay Investigation In Certain Integrated Circuits (337-TA-822)

By Eric Schweibenz
|
Sep
04
On August 30, 2012, the International Trade Commission (“Commission”) issued a notice determining to affirm Theodore R. Essex’s August 6, 2012 decision to stay the investigation in Certain Integrated Circuits, Chipsets, and Products Containing Same Including Televisions (Inv. No. 337-TA-822). By way of background, on August 6, 2012, ALJ Essex determined to stay the investigation pending the Commission’s Final Determination in Inv. No. 337-TA-786.  See our August 8, 2012 post for more details on ALJ Essex’s decision.  In the August 30 notice, the Commission first noted that while ALJ Essex’s decision was not an initial determination, the Commission decided “to treat this matter as an interlocutory appeal under Commission rule 210.24(b), 19 C.F.R. § 210.24(b).”  On appeal, the Commission determined to affirm ALJ Essex’s decision.
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ITC To Review In Part The Finding of Violation of Section 337 In Certain Protective Cases (337-TA-780)

By Eric Schweibenz
|
Sep
05
On August 30, 2012, the International Trade Commission (“the Commission”) issued a notice of its decision to review in part the initial determination (“ID”) finding a violation of section 337 in Certain Protective Cases and Components Thereof(Inv. No. 337-TA-780). By way of background, Otter Products, LLC (“Otter”) filed its complaint in this investigation on May 25, 2011 alleging that Griffin Technology, Inc. (“Griffin”) and numerous other parties (terminated by settlement, consent order, etc. or found to be in default) unlawfully imported, sold for importation, and sold after importation certain protective cases and components thereof for cellular phones, mobile music players, and tablet computers that infringe various patents.  The Commission instituted this investigation on June 24, 2011.  See our June 27, 2011 post for more details. As summarized in our July 18, 2012 post, ALJ Essex issued an ID finding that there has been a violation of Section 337 by the Defaulting Respondents in this investigation with respect to U.S. Patent Nos. D600,908; D617,784; D615,536; D617,785; D634,741; D636,386; and 7,933,122; and U.S. Trademark Registrations 3,788,534; 3,788,535; 3,623,789; and 3,795,187.  In the ID the ALJ notes without substantial discussion that, in view of undisputed evidence, each of the Defaulting Respondents satisfies the importation requirement and their accused products literally infringe the asserted patents and trademarks.  The ALJ also found that there has been a violation of Section 337 by Griffin with respect to the Griffin Survivor for the iPad 2 and the Griffin Explorer for the iPhone 4, but that the Griffin Survivor for iPod Touch does not literally infringe. After reviewing the parties’ filings, the Commission determined to review the ALJ’s finding that the accused Griffin Survivor for iPod Touch does not literally infringe the asserted claims of U.S. Patent No. 7,933,122.  The Commission declined to review any other issues in the ID. To summarize, the ID discussed the construction of the term “groove” at length, and in the end, it was given its plain and ordinary meaning of “a long, narrow cut or furrow,” in contrast to the broader meaning advocated by Otter that did not limit “groove” to any particular shape.   The Griffin Survivor for iPod Touch was found not to infringe because the alleged “groove” was of a shape other than long and narrow. The parties are requested to brief their positions on three questions listed in the notice related to interpretation of “groove” and the relation of “groove” to other elements in the accused product and in U.S. Patent No. 7,933,122.  The notice also requests briefing on the ALJ’s recommendations on remedy and bonding. Written submissions are due by September 14, 2012, with reply submissions due by September 21, 2012.
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ITC To Review In Part ALJ Shaw’s Initial Determination In Certain Light-Emitting Diodes (337-TA-784)

By Eric Schweibenz
|
Sep
12
On September 7, 2012, the International Trade Commission (“the Commission”) issued a notice of its decision to review in part the initial determination (“ID”) finding a violation of Section 337 in Certain Light-Emitting Diodes and Products Containing the Same (Inv. No. 337-TA-784). By way of background, the Commission instituted this investigation based on a complaint filed by OSRAM GmbH (“OSRAM”) on June 3, 2011 alleging that LG Electronics, LG Innotek Co., Ltd., LG Electronics U.S.A., Inc., and LG Innotek U.S.A., Inc. (collectively, “LG”) unlawfully imported, sold for importation, and sold after importation certain light-emitting diodes and products containing same that infringe various patents.  See our July 7, 2011 post for more details. As summarized in our July 12, 2012 post, ALJ Shaw issued an ID finding that there has been a violation of Section 337 by LG in this investigation by reason of infringement of certain valid claims of U.S. Patent No. 7,151,283.  ALJ Shaw further held that LG’s accused products did not infringe U.S. Patent No. 7,271,425, and that the domestic industry requirement was satisfied by OSRAM with respect to all asserted patents. After reviewing the parties’ filings, the Commission determined to review the ALJ’s finding that OSRAM met the economic prong of the domestic industry requirement with respect to both asserted patents.  With respect to the ‘283 patent, the Commission determined to review:  (1) the ALJ’s finding that claims 1, 3, 4, 6, 8, 22, 24-26, 29 and 32-34 are not rendered obvious in view of certain prior art references; (2) the ALJ’s finding that claim 34 is not rendered obvious in view of certain prior art references; and (3) the ALJ’s finding that claim 34 is not rendered obvious in view of certain prior art references.  The Commission declined to review any other issues in the ID. The parties are requested to brief their positions on three questions listed in the notice related to the economic prong of the domestic industry requirement, as well as three questions listed in the notice related to whether the prior art teaches a “partial conversion” of light and the motivation to combine same.  The notice also requests briefing on the ALJ’s recommendations on remedy and bonding. Written submissions are due by September 21, 2012, with reply submissions due by September 28, 2012.
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ITC Issues Final Determination Of No Violation In Certain Integrated Circuits (337-TA-786)

By Eric Schweibenz
|
Sep
17
On September 13, 2012, the International Trade Commission (the “Commission”) issued a corrected notice in Certain Integrated Circuits, Chipsets, and Products Containing Same Including Televisions(Inv. No. 337-TA-786).  In the notice, the Commission determined to review ALJ Robert K. Rogers, Jr.’s July 12, 2012 Initial Determination on Violation (“ID”), affirm the ultimate finding of no violation, and terminate the investigation. By way of background, the investigation is based on a complaint filed by Complainant Freescale Semiconductor, Inc. (“Freescale”) alleging violation of Section 337 in the importation into the U.S., sale for importation, and/or sale within the U.S. after importation of certain integrated circuits, integrated circuit chipsets, and products containing the same, including televisions, that infringe one or more claims of U.S. Patent No. 5,467,455.  See our December 2, 2011 post for more details on Freescale's complaint.  The remaining respondents in this investigation are MediaTek Inc. and Zoran Corp.  On July 12, 2012, ALJ Rogers issued his final ID, finding no violation of Section 337 with respect to U.S. Patent No. 5,467,455 (the ‘455 patent).  More specifically, ALJ Rogers found that an industry does not exist in the U.S. that exploits the ‘455 patent.  ALJ Rogers also found claims 9 and 10 of the ‘455 patent to be invalid under 35 U.S.C. § 103.  See our July 16, 2012 post for more details. According to the September 13 notice, the Commission determined:
to review, and on review, reverse[ ] the ALJ’s finding that Japanese Patent Application JP H05-83113-A to Kuboki (“Kuboki”) discloses the limitation “[a] data processor within an integrated circuit package comprising:…a plurality of bus termination circuits” of claim 9 of the ‘455 patent.  The Commission has also determined to review, and on review, affirms with modification the ID’s finding that Kuboki in combination with the knowledge of one of ordinary skill in the art renders obvious claims 9 and 10 of the ‘455 patent.  The Commission has further determined to review the ID’s finding that the Kuboki reference in combination with U.S. Patent No. 5,479,123 to Gist (“Gist”) renders obvious claims 9 and 10, and on review, finds that the Kuboki reference in combination with Gist and the knowledge of one of ordinary skill in the art renders obvious claims 9 and 10 of the ‘455 patent.  The Commission has also determined to review the ID’s finding that Freescale failed to establish the existence of a domestic industry based on its licensing activities, and on review, affirm the ID’s finding with modification.  The Commission has further determined to review the ID’s finding that Freescale has failed to show that the Accused Zoran Hybrid Termination Circuits infringe claims 9 and 10 of the ‘455 patent and on review, affirms the ID’s finding with modification.
Lastly, the Commission noted that it determined not to review the remaining issues decided in the ID and will issue its opinion in the near future.
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ITC Decides To Review Initial Determination In Certain Electric Fireplaces (337-TA-791/826)

By Eric Schweibenz
|
Sep
18
On September 13, 2012, the International Trade Commission (the “Commission”) issued a notice in Certain Electric Fireplaces, Components Thereof, Manuals for Same, and Products Containing Same, Certain Processes for Manufacturing or Relating to Same, and Certain Products Containing Same (Inv. No. 337-TA-791/826).  In the notice, the Commission determined to review ALJ David P. Shaw’s Order No. 19 issued on July 13, 2012 denying Respondent Yue Qiu Sheng aka Jason Yue’s (“Yue”) motion for summary determination that Complainants Twin-Star International, Inc. and TS Investment Holding Corp.’s (collectively, “Complainants”) breach of stockholder agreement claim is outside the scope of the investigation.  Specifically, ALJ Shaw found that it was unclear whether the alleged breach of contract could not be shown to constitute or be part of an act of unfair competition, noting that:  (1) the notice of investigation covers acts of copyright violation, trade secret misappropriation, and “unfair competition” prohibited by Section 337; (2) the Commission consolidated Investigation No. 337-TA-791 with Investigation No. 337-TA-826, and in doing so issued a notice of investigation that included Yue as a respondent and specifically directed that the investigation cover “misappropriation of trade secrets, breach of contract, or tortuous interference with contract” prohibited by Section 337; and (3) it has not been shown that breach of contract, including the breach alleged by Complainants, cannot constitute an unfair act cognizable under Section 337.  See our July 25, 2012 post for more details. According to the notice, the Commission determined to review the ID in part to the extent it finds a violation of Section 337 based on the breach of contract allegations.  The Commission further determined not to review the remainder of the ID. The parties are requested to brief their positions on the following two questions listed in the notice:
1.  What support exists for the notion that unfair acts or unfair methods of competition under section 337(a)(1)(A), 19 U.S.C. § 1337(a)(1)(A), are limited to “public wrongs” as opposed to “private wrongs.”  Please discuss statutory language, any relevant legislative history, and legal precedent, particularly Tianrui Group Co. v. U.S. Int’l Trade Comm’n, 661 F.3d 1322 (2011). 2.  Please explain whether a breach of contract claim can give rise to a violation of 19 U.S.C. § 1337(a)(1)(A), and discuss any relevant statutory language, legislative history, and legal precedent. 
The notice also requests briefing on the issues of remedy, public interest, and bonding. Written submissions are due by October 12, 2012, with reply submissions due by November 9, 2012.
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ITC Decides To Review Initial Determination In Certain Automated Media Library Devices (337-TA-746)

By Eric Schweibenz
|
Sep
21
On August 20, 2012, the International Trade Commission (the “Commission”) issued a notice in Certain Automated Media Library Devices(Inv. No. 337-TA-746).  In the notice, the Commission determined to review in part Chief ALJ Charles E. Bullock’s June 20, 2012 Initial Determination (“ID”), which found no violation of Section 337 by Respondents in this investigation. By way of background, the Complainant in this matter is Overland Storage, Inc. and the Respondents are BDT AG, BDT-Solutions GmbH & Co. KG, BDT Products, Inc., BDT Automation Technology (Zhuhai FTZ) Co., Ltd., and BDT de México, S. de R.L. de C.V. (collectively, “BDT”).  The two patents at issue, namely: U.S. Patent Nos. 6,328,766 (the ‘766 patent) and 6,353,581 (the ‘581 patent) are directed to automated media library devices, also known as tape libraries.  In his ID, ALJ Bullock determined that (i) the ‘766 and ‘581 patents are not infringed by BDT; (ii) the patents are not invalid except for claim 15 of the ‘581 patent.; and (iii) a domestic industry in the United States exists that practices the ‘766 patent, but does not exist that practices the ‘581 patent.  See our July 27, 2012 post for more details. According to the notice, the Commission determined to review the ID in part.  Specifically, with respect to the ‘766 patent, the Commission determined to review the ALJ’s findings on contributory infringement, validity and patent exhaustion. With respect to the ‘581 patent, the Commission determined to review the ALJ’s construction of the claim term “linear array,” and the ALJ's findings on infringement, validity, domestic industry and patent exhaustion. The parties are requested to brief their positions on the following five questions listed in the notice:

1.  The ALJ found that the BDT Respondents did not prove by clear and convincing evidence that the IBM 3570, 3575, 7331, 7336 and 3494 documents qualify as printed publications under 35 U.S.C. § 102. For each respective IBM document, please identify all evidence in the record that supports a finding that the document was publicly accessible before the filing date of the ‘766 patent.

2. To the extent the IBM 3570, 7331, 7336 and 3494 documents qualify as printed publications under 35 U.S.C. § 102, how does each document either alone or in combination with other prior art of record anticipate or render obvious the asserted claims of the ‘766 patent? Please specify what prior art, if any, allegedly combines with the respective IBM document(s) to render obvious the asserted claims, and why.  We are particularly interested in how the respective IBM documents, either alone or in combination with other prior art, expressly or inherently disclose or suggest the features of “said controller is configured such that a subset of said plurality of media elements and a subset of said plurality of media element drives are available for read/write access by a first one of said plurality of host computers and are unavailable for read/write access by a second one of said plurality of host computers” in claim 1 and the “queuing” and “sequentially performing” steps in claim 2. Please cite only record evidence and relevant legal authority to support your position.  Arguments not made before the ALJ will not be considered.

3. The ALJ found that Overland did not prove that the BDT Respondents possessed the requisite knowledge that the acts of IBM and Dell constituted patent infringement. Please identify all evidence in the record that supports a finding of contributory infringement of the ‘766 patent.

4. Please comment on Overland’s assertion that its evidence and analysis for domestic industry with respect to its NEO 2000, 2000e, 4000 and 4000e tape libraries were undisputed. Please cite all evidence in the record that supports your position.

5. The BDT Respondents raise the question of whether the settlement agreement and the license agreement between Overland and IBM exhaust Overland’s rights in the Asserted Patents as to an upstream, unlicensed supplier. Please address the ALJ’s finding that the license agreement itself, as opposed to a sale of the patented goods, constitutes a “first authorized sale” for purposes of patent exhaustion in view of pertinent legal authorities (e.g., Quanta Computer, Inc. v. LG Elecs., Inc., 553 U.S. 617(2008); LG Elecs., Inc. v. Bizcom Elecs., Inc., 453 F.3d 1364 (Fed.. Cir. 2006); Excelsior Tech. Inc. v. Pabst Licensing GMBH & Co., KG, 541 F.3d 1373 (Fed. Cir. 2008); LG Elecs. Inc. v. Hitachi Ltd., 655 F. Supp. 2d 1036 (N.D. Cat,,2009); and Tessera, Inc. v. Inti. Trade Comm 'n, 646 F.3d 1357 (Fed. Cir. 2011)).

The notice also requests briefing on the issues of remedy, public interest, and bonding.  Written submissions are due by September 4, 2012, with reply submissions due by September 12, 2012.
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ITC Publishes New Proposed Rules Regarding Scope of Discovery

By Eric Schweibenz
|
Oct
06
On October 5, 2012, the International Trade Commission (“Commission”) published a Notice of proposed rulemaking, announcing amendments to its Rules of Practice and Procedure.  In particular, the Commission proposes to amend Section 210.27 by adding new subsections (c), (d), and (e) that include specific limitations on electronically stored information, new general limitations on discovery, and specific procedures to address withholding otherwise discoverable information on the grounds of attorney-client privilege and work product protection, and procedures to address the potential waiver of such privileged information if produced during the discovery process. According to the notice, the intended effect of the proposed amendments is to, “reduce expensive, inefficient, unjustified, or unnecessary discovery practices in agency proceedings while preserving the opportunity for fair and efficient discovery for all parties.”  Each of the three new proposed subsections of Section 210.27 will be separately addressed below. Proposed Limitations on Electronically Stored Information The commentary accompanying the proposed rules states that new subsection 210.27(c) is similar to Federal Rule of Civil Procedure 26(b)(2)(B), and the new subsection would provide that, “a person need not provide discovery of electronically stored information from sources that the person identifies as not reasonably accessible because of undue burden or cost.”  The proposed subsection further provides that a party seeking such information could nonetheless file a motion to compel its production.  If, in response to the motion to compel, the person from whom discovery is sought makes a showing that the information is not reasonably accessible because of undue burden or cost, then the administrative law judge (“ALJ”) would be allowed to order discovery from such sources if the requesting party showed good cause, taking into account proposed considerations contained in new subsection (d).  Proposed subsection (c) would also allow the ALJ to specify conditions for discovery of electronically stored information, for example by requiring the requesting party to pay part or all reasonable costs of obtaining information from sources that are not reasonably accessible.  The comments specifically state that the case law developed under Federal Rule of Civil Procedure 26(b)(2)(B) “would provide guidance for application of proposed subsection (c).” General Limitations on Discovery The commentary to the proposed rules states that proposed new subsection (d) is similar to Federal Rule of Civil Procedure 26(b)(2)(C), and that new subsection (d) requires limitations on discovery if the ALJ determines that the discovery sought is duplicative or can be obtained from a less burdensome source; the party seeking discovery has had ample opportunity to obtain the information; or the burden of the proposed discovery outweighs its likely benefit.  However, the comments provide that proposed new subsection (d) differs from its Federal Civil Rule counterpart by (1) requiring the ALJ to limit discovery if the person from whom discovery is sought has waived the legal position that justified the discovery or has stipulated to the facts pertaining to the issue to which the discovery is directed, and (2) the proposed subsection (d) requires the ALJ to consider the importance of the discovery in resolving the issues to be decided by the Commission rather than, in the case of the Federal Civil Rule counterpart, analyzing the importance of the issues at stake in the action. Procedures to Claim and Mitigate Waiver of Privileged Information The commentary states that proposed subsection (e) addresses uncertainly surrounding any alleged waiver of privileged information that is produced during discovery, and the absence of any Commission rules requiring the production of a privilege log when withholding information on the basis of privilege or work product protection.  The comments state that proposed subsection (e) provides uniform procedures requiring the production of privilege logs similar to Federal Rule of Civil Procedure 26(b)(5).  However, proposed subsection (e) provides more detail than its Federal Rule counterpart by (1) describing in greater detail the specific categories required to be contained within the privilege log, and (2) adding that the privilege log must be produced within ten days after expressly making the claim when responding to a relevant question or request.  The proposed subsection (e) allows parties to agree to waive compliance with the privilege log requirement for certain time frames. The comments also state that proposed subsection (e) is similar to Federal Rule of Civil Procedure 26(b)(5)(B)’s procedure for addressing the recall or mitigation of potentially privileged information that has been produced during discovery.  The proposed subsection (e) goes further than its Federal Rule counterpart by providing strict timelines for persons receiving alleged privileged information to return, sequester, or destroy the specified information; not use or disclose the information until the dispute is resolved; retrieve the information from anyone to whom the information was disclosed prior to the notification of privilege; meet and confer to resolve the privilege question; and then file any motion to compel the production of the privileged information, using only the description of the potentially privileged information  provided on a privilege log.  The comments state that subsection (e) is not intended to alter any state or federal law regarding waiver of privileged or work-product information, and that the Commission would expect ALJs “to apply federal and common law when determining the consequences of any allegedly inadvertent disclosure,” including, “whether the holder of the privilege or protection took reasonable steps to prevent disclosure of the information and other considerations found in Federal Rule of Evidence 502.” In order to be considered, the notice states that written comments regarding the proposed rules must be received by 5:15 p.m. on December 4, 2012.
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ITC Issues Remedies and Notice Of Final Determination Finding Violation In Certain Lighting Control Devices (337-TA-776)

By Eric Schweibenz
|
Oct
19
On October 17, 2012, the International Trade Commission (the “Commission”) issued a notice that it terminated the investigation finding a violation of Section 337 and issued a general exclusion order and cease and desist orders directed against the Respondents in Certain Lighting Control Devices Including Dimmer Switches and Parts Thereof (Inv. No. 337-TA-776). By way of background, the investigation is based on a May 16, 2011 complaint filed by Lutron alleging violation of Section 337 in the importation into the U.S. and sale of certain lighting control devices including dimmer switches and parts thereof that infringe U.S. Patent Nos. 5,248,919 (“the ‘919 patent”) and 5,637,930 (“the ‘930 patent”).  The Commission’s notice of investigation named ten separate respondents.  See our June 13, 2011 post for more details.  However, two of the respondents were terminated from the investigation based on consent orders, while the remaining respondents were found in default.  ALJ Essex's June 7, 2012, initial determination (“ID”) granted- in-part Lutron’s motion for summary determination, finding that Lutron satisfied the domestic industry requirement, that all defaulting respondents met the importation requirement, and that each of the defaulting respondents’ accused products infringed at least one claim of both asserted patents.  After examining the record of the investigation, including the June 7, 2012 ID, the Commission determined to vacate all portions of the ID relating to the ‘919 patent as moot because the patent expired on March 31, 2012, thereby terminating the Commission’s jurisdiction under 19 U.S.C. § 1337(a)(1)(B)(i).  The Commission determined not to review the remainder of the ID.  See our August 1, 2011 post for more details. According to the October 17, 2012 Notice, the Commission determined to issue both:  (i) a general exclusion order prohibiting the unlicensed entry of lighting control devices including dimmer switches and parts thereof that infringe certain claims of the '930 patent; and (ii) cease and desist orders prohibiting Respondents from conducting any of the following activities in the United States: importing, selling, marketing, advertising, distributing, offering for sale, transferring (except for exportation), and soliciting U.S. agents or distributors for, lighting control devices including dimmer switches and parts thereof that infringe certain claims of the '930 patent. The Commission further determined that a bond in the amount of 100% of the entered value of a covered article is required for temporary import during the Presidential review period. According to the notice, the Commission additionally terminated the investigation.
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ITC Remands Investigation in Certain Automated Media Library Devices (337-TA-746)

By Eric Schweibenz
|
Oct
31
On October 25, 2012, the International Trade Commission (“Commission”) issued a notice and order remanding the investigation with respect to U.S. Patent Nos. 6,328,766 and 6,353,581 in Certain Automated Media Library Devices(Inv. No. 337-TA-746). By way of background, the complainant in this matter is Overland Storage, Inc. (“Overland”) and the remaining respondents are BDT AG, BDT-Solutions GmbH & Co. KG, BDT Products, Inc., BDT Automation Technology (Zhuhai FTZ) Co., Ltd., and BDT de México, S. de R.L. de C.V. (collectively, “BDT”).  The ‘766 patent and the ‘581 patent are directed to automated media library devices, also known as tape libraries.  In his June 20, 2012 Initial Determination (“ID”), Chief ALJ Charles E. Bullock determined that (1) the ‘766 and ‘581 patents are not infringed by BDT; (2) the patents are not invalid except for claim 15 of the ‘581 patent; and (3) a domestic industry in the United States exists for the ‘766 patent, but not for the ‘581 patent.  See our July 27, 2012 post for more details. The Commission had determined to review the ID in part.  Specifically, with respect to the ‘766 patent, the Commission determined to review the ALJ’s findings on contributory infringement, validity and patent exhaustion.  Regarding the ‘581 patent, the Commission determined to review the ALJ’s construction of the claim term “linear array,” and the ALJ’s findings on infringement, validity, domestic industry and patent exhaustion.  See our September 21, 2012 post for more details. According to the notice and order, the Commission made the following determinations after examining the record, the ID and the parties’ submissions: 1.  With respect to the ‘766 patent, the Commission affirmed, with modified reasoning, the ALJ’s finding that BDT did not contributorily infringe the asserted claims.  In particular, the Commission determined that Overland waived its right to argue that the requisite knowledge required for contributory infringement can be presumed.  The Commission also determined that Overland did not prove that BDT imported, sold for importation, or sold after importation any accused products that contributed to IBM’s or Dell’s direct infringement after BDT had knowledge of the ‘766 patent.  In addition, the Commission reversed the ALJ’s finding that the IBM documents related to the IBM 3570, 7331, 7336 and 3494 tape libraries do not qualify as printed publications under § 102, but affirmed the ALJ’s finding that documents related to the IBM 3575 tape library are printed publications.  Accordingly, the investigation was remanded to the ALJ to consider (1) whether any of the IBM documents related to the IBM 3570, 7331, 7336 and 3494 teach or suggest a controller that is configured to partition media elements and drives in the infringing manner; (2) whether any of those documents teach or suggest the command queuing feature of claim 2 of the ‘766 patent; and (3) if necessary, whether there is sufficient evidence to support combining the respective IBM document with the IBM tape libraries and/or U.S. Patent No. 6,434,090 to render obvious the asserted claims of the ‘766 patent. 2.  With respect to the ‘581 patent, the Commission determined that the limitation “linear array” means “media element storage locations [or cells] arranged in one or more straight lines.”  The Commission affirmed, with modified reasoning, the ALJ’s findings of noninfringement and no invalidity.  The Commission also reversed the ALJ’s finding that Overland failed to satisfy the technical prong of the domestic industry requirement.  Specifically, the Commission determined that Overland sustained its burden of showing by a preponderance of the evidence that at least its NEO 2000, 2000e, 4000 and 4000e tape libraries practice one or more claims of the ‘581 patent.  Accordingly, the Commission remanded the investigation to the ALJ to issue a final initial remand determination on the economic prong of the domestic industry requirement for the ‘581 patent.  Finally, the Commission affirmed, with modified reasoning, the ALJ’s rejection of BDT’s patent exhaustion defense. 3.  The Commission extended the target date of completion of the investigation to March 25, 2013.
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ITC Decides To Review Two Initial Determinations In Certain Wiper Blades (337-TA-816)

By Eric Schweibenz
|
Nov
02
On November 1, 2012, the International Trade Commission (the “Commission”) issued a notice in Certain Wiper Blades(Inv. No. 337-TA-816).  In the notice, the Commission determined to review two of Chief ALJ Charles E. Bullock’s Initial Determinations.  The first ID, issued as Order No. 51 on October 2, 2012, found that claims 1-6 and 8-10 of U.S. Patent No. 6,611,988 and all claims of U.S. Patent Nos. 6,553,607, 6,836,926 and 6,973,698 are invalid as indefinite under § 112.  See our October 5, 2012 post for more details.  The second ID, issued as Order No. 52 on October 25, 2012, found that Respondents Danyang UPC Auto Parts Co., Ltd., Pylon Manufacturing Corp., and Scan Top Enterprise Co., Ltd.’s accused products do not infringe the asserted claims of the ‘988 and ‘926 patents, or the asserted claims of U.S. Patent Nos. 6,944,905, 7,293,321 and 7,523,520.  See our October 29, 2012 post for more details. By way of background, the investigation is based on a complaint filed by Robert Bosch LLC (“Bosch”) alleging violation of Section 337 in the importation and sale of certain “flat” or “beam-type” wiper blade devices that infringe one or more claims of the asserted patents.  See our October 27, 2011 post for more details. According to the notice, the Commission determined to review Order Nos. 51 and 52.  By virtue of reviewing Order No. 51, the Commission is also reviewing the ALJ’s claim construction determinations regarding those claim terms found to be indefinite.  By virtue of reviewing Order No. 52, the Commission is also reviewing the ALJ’s construction of “support element” or “supporting element.” The parties are requested to brief their positions on the following questions listed in the notice: For Order No. 51: 1.  If the Commission were to determine that each of the claim terms in dispute is definite, the appropriate construction for each. 2.  Whether the term “stop (62, 63)” in claim 1 of the ‘607 patent refers to the stop on the wiper blade or the stop on the wiper arm. 3.  The effect, if any, on claim construction by virtue of the patents’ recitation in their claims of the numbering of components from the preferred embodiment (e.g., “stop (62, 63)”). For Order No. 52: 1.  Whether the intrinsic record for each patent demonstrates clear disavowal of claim scope in view of the legal test set forth in, inter alia, Thorner v. Sony Computer Entertainment America, LLC, 669 F.3d 1362, 1366-67 (Fed. Cir. 2012).  The parties are to address not only the scope of disavowal adopted by the ALJ, but also the scope of disavowal urged in claim construction proceedings by the IA (“high profile bracket design”), on a patent-by-patent basis. 2.  Whether the subject matter of each patent claim (e.g., the attachment mechanism for a wiper blade to a wiper arm, as opposed to the blade itself) is pertinent for the clear disavowal test. 3.  Whether it is appropriate to construe the term “support element” to include limitations recited elsewhere in the asserted patent claims, such as “band-shaped-elongated,” “band-like,” “elongated,” “long-stretched out,” or “flat bar.” 4.  Whether there is a genuine issue of material fact as to whether the accused products that are the subject of Order No. 52 contain a “support element” that is “band-shaped-elongated,” “band-like” “elongated,” “long-stretched out,” or “flat bar,” regardless of whether those accused products use brackets.
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ITC Issues Notice of Final Determination Finding Violation And General Exclusion Order In Certain Protective Cases (337-TA-780)

By Eric Schweibenz
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Nov
05
On October 31, 2012, the International Trade Commission (“the Commission”) issued a notice finding a violation of Section 337, and determining that a general exclusion order and several cease and desist orders should issue in Certain Protective Cases and Components Thereof (Inv. No. 337-TA-780). By way of background, Otter Products, LLC (“Otter”) filed its complaint in this investigation on May 25, 2011, alleging that Griffin Technology, Inc. (“Griffin”) unlawfully imported, sold for importation, and/or sold after importation certain protective cases and/or components thereof for cellular phones, mobile music players, and/or tablet computers that infringe U.S. Patent No. 7,933,122.  Numerous other parties were terminated by settlement, consent order, or found to be in default for infringing various additional patents.  The Commission instituted this investigation on June 24, 2011.  See our June 27, 2011 post for more details. As summarized in our July 18, 2012 post, ALJ Essex issued an Initial Determination (“ID”) finding that there has been a violation of Section 337 by numerous defaulting respondents in this investigation with respect to U.S. Patent Nos. D600,908; D617,784; D615,536; D617,785; D634,741; D636,386; and 7,933,122; and U.S. Trademark Registrations 3,788,534; 3,788,535; 3,623,789; and 3,795,187 (collectively, “asserted patents and trademark registrations”).  In the ID the ALJ noted without substantial discussion that, in view of undisputed evidence, each of the defaulting respondents satisfied the importation requirement and their accused products literally infringed the asserted patents and trademarks.  The ALJ also found that there had been a violation of Section 337 by Griffin with respect to the Griffin Survivor for the iPad 2 and the Griffin Explorer for the iPhone 4, but that the Griffin Survivor for the iPod Touch did not literally infringe. After reviewing the parties’ petitions for review, the Commission determined on August 30, 2012, to review the ALJ’s finding that the accused Griffin Survivor for iPod Touch did not literally infringe the asserted claims of U.S. Patent No. 7,933,122 (the ‘122 patent).  The Commission declined to review any other issues in the ID.  See our September 5, 2012 post for more details. According to the October 31 notice, the Commission determined to reverse the ALJ’s finding that the accused Griffin Survivor for iPod Touch does not literally infringe the asserted claims of the ‘122 patent and adopted the ALJ’s findings in all other respects.  Having found a violation of Section 337, the Commission determined that the appropriate remedy is (1) a general exclusion order prohibiting the unlicensed entry of protective cases and components thereof that infringe the asserted patents and trademark registrations; (2) cease and desist orders prohibiting the U.S. defaulting respondents from conducting various activities that would infringe the asserted patents and trademark registrations; and (3) a cease and desist order prohibiting Griffin from conducting various activities that would infringe the ‘122 patent.  The Commission also determined that a bond corresponding to varying percentages of an article’s entered value would be required for temporary import during the Presidential review period.  With respect to Griffin, a bond in the amount of 12.45% is required for tablet cases, and no bond is required for non-tablet cases; for defaulting respondents, a bond in the amount of 331.8% for tablet cases and 245.53% for non-tablet cases is required; and for all other infringing products, a bond of 100% of the entered value of the product would be required.  According to the notice, the Commission thereby terminated the investigation.
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ITC Decides to Review Initial Determination in Certain Video Game Systems (337-TA-770)

By Eric Schweibenz
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Nov
08
On November 6, 2012, the International Trade Commission (the “Commission”) issued a notice in Certain Video Game Systems and Wireless Controllers and Components Thereof (337-TA-770).  In the notice, the Commission determined to review in part Chief ALJ Charles E. Bullock’s August 31, 2012 initial determination (“ID”), which found no violation of Section 337 by the Respondents in this investigation. By way of background, this investigation was instituted on April 20, 2011 based on a complaint filed by Creative Kingdoms, LLC and New Kingdoms, LLC (collectively, “CK”) alleging a violation of Section 337 by Respondents Nintendo of America, Inc. and Nintendo Co., Ltd. (collectively, “Nintendo”) for the importation into the U.S. and sale of certain video game systems and wireless controllers and components thereof including Nintendo’s Wii wireless game system and controllers.  CK alleged that Nintendo violated Section 337 with respect to U.S. Patent Nos. 7,850,527 (the ‘527 patent), 7,500,917 (the ‘917 patent), and 7,896,742 (the ‘742 patent). In the ID, ALJ Bullock determined that there is no violation of Section 337 by Nintendo in this investigation with respect to the patents-at-issue.  Specifically, ALJ Bullock determined that: (i) Nintendo did not infringe the ‘527 patent or the ‘917 patent, (ii) all of the asserted claims from the patents-at-issue are invalid, and (iii) the domestic industry requirement is not met with respect to the patents-at-issue.  See our October 12, 2012 post for more details. According to the notice, the Commission determined to review the following issues:  (1) claim construction of the limitation “toy wand”; (2) non-infringement of the ‘917 patent; (3) infringement of the ‘742 patent; (4) validity of the ‘917 and ‘742 patents under the enablement requirement; (5) validity of the asserted claims of the ‘917 and ‘742 patents under the written description requirement; and (6) domestic industry requirement with respect to the ‘917 and ‘742 patents. The notice indicates that the Commission has already altered the claim construction of “toy wand,” and in light of this construction (in a soon-to-be issued opinion), the Commission has remanded the case to ALJ Bullock to determine infringement, validity, and domestic industry of the ‘917 and ‘742 patents.  Briefing on the remanded and reviewed issues is postponed until the remand ID is issued.
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ITC Terminates Bond Forfeiture Proceeding In Certain Semiconductor Chips With Minimized Chip Package Size (337-TA-605)

By Eric Schweibenz
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Nov
09
On November 2, 2012, the International Trade Commission (the “Commission”) issued a notice and order granting a joint motion to terminate the bond forfeiture proceeding between Tessera, Inc. (“Tessera”) and Freescale Semiconductor, Inc. (“Freescale”) based on a settlement agreement in Certain Semiconductor Chips With Minimized Chip Package Size and Products Containing Same(Inv. No. 337-TA-605). By way of background, the Commission issued its final disposition of the underlying investigation in May 2009, finding a violation of Section 337 by reason of infringement of Tessera’s U.S. Patent Nos. 5,852,326 and 6,433,419 and issuing a limited exclusion order (“LEO”) and cease and desist orders against various respondents, including Freescale.  On May 21, 2012, Tessera moved for summary determination of bond forfeiture by Freescale, seeking to have the bonds posted by Freescale pursuant to the LEO and cease and desist order forfeited, as well as payment of any pre-judgment interest.  On September 18, 2012, ALJ Theodore R. Essex issued an Initial Determination in Order No. 73 granting-in-part Tessera’s motion, finding that Freescale’s entire posted bond amount is subject to forfeiture, but that Tessera is entitled to only 62.1% combined market share.  The ALJ also found that Tessera is entitled to pre-judgment interest from May 2009 to September 18, 2012, the date Order No. 73 issued.  See our October 12, 2012 post for more details. According to the notice and order, Tessera and Freescale filed a joint motion to terminate the bond forfeiture proceeding on October 9, 2012 based on a settlement stipulation entered into between the parties.  The motion indicated that, as of the date of the motion, Freescale paid Tessera the amount owed according to Order No. 73, and that Tessera “releases and discharges Freescale from any and all claims arising out of Freescale’s activities during the Presidential review period with respect to the patents asserted in this investigation ….”  In granting the motion, pursuant to 19 C.F.R. § 210.50(b)(2), the Commission found no evidence that termination of the investigation would prejudice the public interest or that settlement would adversely impact the public health and welfare, competitive conditions in the U.S. economy, the production of like or directly competitive articles in the U.S., or U.S. consumers.  Since all other respondents were previously terminated from the investigation, the termination of Freescale resolved all remaining issues and thus terminated the investigation in its entirety.
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ITC Decides To Review Initial Determination In Certain LED Photographic Lighting Devices (337-TA-804)

By Eric Schweibenz
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Nov
15
On November 13, 2012, the International Trade Commission (the “Commission”) issued a notice in Certain LED Photographic Lighting Devices and Components Thereof (Inv. No. 337-TA-804).  In the notice, the Commission determined to review in part ALJ Theodore R. Essex’s September 7, 2012 initial determination (“ID”), which found a violation of Section 337 by the Respondents in this investigation. By way of background, the Commission instituted this investigation on September 7, 2011 based on a complaint filed by Litepanels, Inc. and Litepanels, Ltd. (collectively, “Litepanels”) alleging a violation of Section 337 by Respondents FloLight, LLC, Prompter People, Inc., IKAN Corporation, Advanced Business Computer Services, LLC, Fotodiox Inc., Yuyao Lishuai Photo-Facility Co., Ltd., Yuyao Fotodiox Photo Equipment Co., Ltd., Yuyao Lily Collection Co., Ltd., and Stellar Lighting Systems (collectively, the “Respondents”) for the importation into the U.S. and sale of certain LED photographic lighting devices and components thereof.  Litepanels alleged that the Respondents violated Section 337 with respect to U.S. Patent Nos. 7,429,117 (terminated from investigation); 7,510,290 (terminated from investigation); 7,972,022 (the ‘022 patent); 7,318,652 (the ‘652 patent); and 6,948,823 (the ‘823 patent). According to the ID, ALJ Essex determined that there has been a violation of Section 337 by the Respondents in this investigation with respect to claims 1, 57, 58, and 60 of the ‘022 patent; claims 1, 2, 5, 16, 18, 19, 25, and 27 of the ‘652 patent; and claim 19 of the ‘823 patent.  ALJ Essex also determined that no violation of Section 337 occurred by the Respondents with respect to claims 17 and 28 of the ‘823 patent.  See our September 13, 2012 post for more details. According to the November 13, 2012 notice, the Commission has determined to review the ID in part.  Specifically, the Commission has determined to review the following issues: (1) claim construction of the preamble of the asserted claims; (2) claim construction of “an integrated power source”; (3) findings of infringement; (4) findings of obviousness and anticipation; and (5) findings on the technical prong of domestic industry.  Further, the Commission determined not to review the remainder of the ID. The notice also requests briefing on the issues of remedy, public interest, and bonding. Written submissions are due by November 28, 2012, with reply submissions due by December 5, 2012.
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ITC Decides To Review Initial Determination In Certain Electronic Devices, Including Wireless Communication Devices, Portable Music And Data Processing Devices, And Tablet Computers (337-TA-794)

By Eric Schweibenz
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Nov
20
On November 19, 2012, the International Trade Commission (the “Commission”) issued the public version of a notice in Certain Electronic Devices, Including Wireless Communication Devices, Portable Music and Data Processing Devices, and Tablet Computers (Inv. No. 337-TA-794).  In the notice, the Commission determined to review ALJ E. James Gildea’s September 14, 2012 initial determination (“ID”) which found no violation of Section 337. By way of background, the investigation is based on a complaint filed by Samsung Electronics Co., Ltd. and Samsung Telecommunications America, LLC alleging violation of Section 337 by Respondent Apple Inc. (“Apple”) in the importation and sale of certain electronic devices, including wireless communication devices, portable music and data processing devices, and tablet computers that infringe one or more claims of certain U.S. patents.  See our August 1, 2011 post for more details. According to the September 14, 2012 notice regarding the ID, ALJ Gildea determined that there has been no violation of Section 337 by Apple in this investigation with respect to claims 75-76 and 82-84 of U.S. Patent No. 7,706,348 (the ‘348 patent); claims 9-16 of  U.S. Patent No. 7,486,644 (the ‘644 patent); claims 5, 9-10, and 13 of U.S. Patent No. 6,771,980 (the ‘980 patent); and claims 1-5 of U.S. Patent No. 7,450,114 (the ‘114 patent).  ALJ Gildea also determined that a domestic industry does not exist that practices the ‘348, ‘644, ‘980 and ‘114 patents.   According to the November 19, 2012 notice, the Commission has determined to review the “ALJ’s determination of no violation in its entirety.”  Specifically, the Commission encouraged the parties to brief their positions on several questions listed in the notice.  The notice also requests briefing on remedy, the public interest, and bonding. Written submissions are due by December 3, 2012, with reply submissions due by December 10, 2012.
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ITC Decides To Review In Part Initial Determination In Certain Coenzyme Q10 Products (337-TA-790)

By Eric Schweibenz
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Dec
05
On November 29, 2012, the International Trade Commission (“the Commission”) issued a notice in Certain Coenzyme Q10 Products and Methods of Making Same (Inv. No. 337-TA-790).  In the notice, the Commission determined to review in part ALJ Robert K. Rogers, Jr’s initial determination (“ID”) finding no violation of Section 337. By way of background, the investigation is based on a complaint filed by Kaneka Corporation (“Kaneka”) alleging violation of Section 337 in the importation into the U.S. and sale of certain coenzyme Q10 products made by certain processes that infringe one or more claims of U.S. Patent No. 7,910,340 (“the ‘340 patent”).  The Respondents are Zhejiang Medicine Co., Ltd., ZMC-USA, LLC, Xiamen Kingdomway Group Co., Pacific Rainbow International Inc., Mitsubishi Gas Chemical Co., Inc., Mitsubishi Gas Chemical America, Maypro Industries, Inc., and Shenzhou Biology & Technology Co., Ltd. (collectively, “Respondents”).  See our July 15, 2011 post for more details. As summarized in our September 28, 2012 post, ALJ Rogers determined there was no violation of Section 337 by the Respondents with respect to the ‘340 patent.  More specifically, ALJ Rogers found that: (1) none of the Respondents’ accused products infringe the ‘340 patent; (2) an industry does not exist in the U.S. that exploits the ‘340 patent; and (3) the asserted claims of the ‘340 patent are not invalid. After reviewing the ID and petitions for review filed by Kaneka, the Respondents, and the Commission Investigative Staff, the Commission determined to review and affirm (a) the ALJ’s finding that the Mitsubishi Gas Chemical respondents do not satisfy the 70% mole limitation of the asserted claims with their products, and (b) the claim construction of “inert gas atmosphere” as used in the ‘340 patent.  The Commission also determined to review and vacate the finding that the asserted claims are not invalid as containing new matter.  The Commission determined not to review the remainder of the ID, and the investigation is terminated.
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ITC Rules On Petitions For Reconsideration In Certain Automated Media Library Devices (337-TA-746)

By Eric Schweibenz
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Dec
12
On December 11, 2012, the International Trade Commission (“Commission”) issued a notice and order granting petitions for reconsideration filed by Complainant Overland Storage, Inc. (“Overland”) and Respondents BDT AG, BDT Automation Technology (Zhuhai FTZ), Co., Ltd., BDT de Mexico, S. de R.L. de C.V., and BDT Products, Inc.’s (“BDT”) in Certain Automated Media Library Devices (Inv. No. 337-TA-746). By way of background, Chief ALJ Charles E. Bullock issued an Initial Determination (“ID”) on June 20, 2012 finding that (1) U.S. Patent Nos. 6,328,766 and 6,353,581 are not infringed by BDT; (2) the patents are not invalid except for claim 15 of the ‘581 patent; and (3) a domestic industry in the United States exists for the ‘766 patent, but not for the ‘581 patent.  See our July 27, 2012 post for more details.  In its October 25, 2012 order, the Commission remanded the investigation with respect to the ‘766 and ‘581 patents.  Regarding the ‘766 patent, the Commission affirmed -- with modified reasoning -- the ALJ’s finding that BDT did not contributorily infringe the asserted claims, and remanded the investigation for consideration of whether certain IBM documents deemed to qualify as printed publications under § 102 teach or suggest the features of the asserted claims, either alone or in combination with other prior art.  With respect to the ‘581 patent, the Commission modified ALJ Bullock’s construction of the term “linear array,” determining that it means “media element storage locations [or cells] arranged in one or more straight lines.”  In light of this modification, the Commission reconsidered the ALJ’s infringement determination and found that the accused products meet the limitation of “linear array.”  However, the Commission ultimately affirmed the ALJ’s finding of noninfringement of the ‘581 patent because the accused products do not satisfy the limitation of a “manually movable towards said door” mail slot.  The Commision also affirmed the ALJ’s finding that the ‘581 patent is not invalid.  Further, the Commission affirmed -- with modified reasoning -- ALJ Bullock’s rejection of BDT’s patent exhaustion defense, reversed the ALJ’s finding that Overland failed to satisfy the technical prong of the domestic industry requirement as to the ‘581 patent, and remanded the investigation for consideration of whether Overland satisfied the economic prong.  See our November 28, 2012 post for more details. According to the notice and order, Overland filed a petition for reconsideration of the Commission’s determination that BDT does not infringe claims 10, 12 and 16 of the ‘581 patent.  BDT filed a petition for reconsideration of the Commission’s determination that BDT waived the testimony of Mr. Fago and Mr. Siegle in support of its invalidity arguments regarding the ‘581 patent by failing to cite the testimony in pre-hearing or post-hearing briefs. Having considered the matter, the Commission granted Overland’s petition for reconsideration in view of the Commission’s determination that the accused products meet its modified construction of “linear array.”  Thus, in addition to the issues to be considered on remand in the Commission’s October 25, 2012 order, the investigation was further remanded for ALJ Bullock to make all findings regarding direct infringement and, if necessary, indirect infringement, of claims 10, 12 and 16 of the ‘581 patent.  The ALJ was also directed to construe the “manually moveable towards said opening” and “manually moveable towards a doorway” limitations in claims 10, 12 and 16 in accordance with their plain and ordinary meaning.  BDT’s request for reconsideration of the Commission’s determination that BDT waived the testimony of Mr. Fago and Mr. Siegle was denied.
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ITC Decides To Review Initial Determination And Remand-In-Part The Investigation In Certain Devices For Improving Uniformity Used In A Backlight Module (337-TA-805)

By Eric Schweibenz
|
Dec
27
On December 21, 2012, the International Trade Commission (the “Commission”) issued a notice and order in Certain Devices for Improving Uniformity Used in a Backlight Module and Components Thereof and Products Containing Same (337-TA-805).  In the notice, the Commission determined to review ALJ Theodore R. Essex’s October 22, 2012 initial determination (“ID”) which found no violation of Section 337.  Further, the Commission issued an order remanding-in-part the investigation back to ALJ Essex. By way of background, the Complainants in this matter are Industrial Technology Research Institute and ITRI International, Inc. (collectively, “ITRI”) and the Respondents are LG Corporation, LG Electronics, Inc., and LG Electronics U.S.A., Inc. (collectively, “LG”).  ITRI alleged that LG violated Section 337 by the importation and/or sale of LCD televisions and monitors that infringed claims 6, 9, and 10 of U.S. Patent No. 6,883,932 (the ‘932 patent).  The subject matter of the ‘932 patent is an apparatus for improving uniformity used in backlight modules using light sources, a reflective housing, and at least one structured arc sheet.  See our September 12, 2011 post for more details. In his October 22, 2012 ID, ALJ Essex determined that LG’s accused products do not infringe the asserted claims of the ‘932 patent – either literally or under the doctrine of equivalents – because the accused products failed to meet the “structured arc sheet” limitation of independent claim 6.  Additionally, ALJ Essex found that ITRI’s domestic industry product does not satisfy the technical prong of the domestic industry requirement.  Based on his finding of no infringement and no domestic industry, ALJ Essex did not reach the issues of invalidity and unenforceability.  See our November 6, 2012 post for more details. According to the December 21, 2012 notice, the Commission has determined to review the “final ID in its entirety” and remand-in-part the investigation.  According to the accompanying order, the Commission remanded-in-part the investigation back to ALJ Essex to consider the parties’ invalidity and unenforceability arguments and make appropriate findings.  The Commission did not seek further briefing.  Specifically, the Commission held that briefings, if any, will await Commission consideration of ALJ Essex’s final initial remand determination.
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