Commission Notices

ITC Affirms ALJ Bullock’s Finding Of No Violation Of Section 337 In Certain Static Random Access Memories (337-TA-792)

By Eric Schweibenz
|
Jun
13
On June 7, 2013, the International Trade Commission (“the Commission”) issued a notice in Certain Static Random Access Memories and Products Containing Same (Inv. No. 337-TA-792).  In the notice, the Commission determined to affirm Chief ALJ Charles E. Bullock’s initial determination finding no violation of Section 337 and to terminate the investigation.  By way of background, the Complainant in this matter is Cypress Semiconductor Corporation (“Cypress”) and the remaining Respondents are GSI Technology, Inc., Cisco Systems, Inc., and Avnet, Inc. (collectively, “Respondents”).  The patents at issue in the investigation are U.S. Patent Nos. 6,651,134 (the ‘134 patent); 6,262,937 (the ‘937 patent); 7,142,477 (the ‘477 patent); and 6,534,805 (the ‘805 patent).  See our July 26, 2011 post for more information about this investigation. In his October 25, 2012 Initial Determination (“ID”), ALJ Bullock determined that the Respondents’ accused products do not infringe any of the four patents.  The ALJ also determined that Cypress failed to meet the technical prong of the domestic industry requirement for any of the four patents.  In light of these findings, the ALJ declined to make any findings regarding invalidity or unenforceability of the patents in the interests of judicial economy.  See our December 21, 2012 post for additional details. However, the case was remanded to the ALJ to make specific findings on these grounds as they were litigated by the parties.  On February 25, 2013, ALJ Bullock issued a Remand Initial Determination (“RID”) finding that the asserted patents are enforceable and not invalid.  See our December 28, 2012 post discussing the remand and our March 20, 2013 post for details on the RID opinion. On April 26, 2013, the Commission determined to review the RID with respect to invalidity, but did not request additional briefing from the parties.  The Commission also declined Respondents’ request to take judicial notice of an on-going reexamination proceeding regarding the ‘805 patent and to admit filings from the reexamination into evidence in this investigation.  Having considered the evidence of record, including ALJ Bullock’s final ID and RID, the Commission determined to affirm the ALJ’s finding of no violation of Section 337, subject to the following modifications.  First, with respect to the ‘805 patent, the Commission affirmed ALJ Bullock’s findings that (a) Cypress failed to prove that the accused products infringe the asserted claims; (b) Cypress failed to establish the technical prong of the domestic industry requirement; and (c) Respondents failed to establish by clear and convincing evidence that the asserted claims are invalid as anticipated.  However, the Commission reversed the ALJ’s finding that a publication by Ishida did not anticipate the asserted claims of the ‘805 patent.  As to the ‘134, ‘937, and ‘477 patents, the Commission affirmed ALJ Bullock’s findings that (a) Cypress failed to prove infringement; (b) Cypress failed to establish the technical prong of the domestic industry requirement; and (c) Respondents failed to prove anticipation by clear and convincing evidence.
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ITC Terminates Investigation And Issues General Exclusion Order And Cease And Desist Orders After Finding Violation Of Section 337 In Certain Kinesiotherapy Devices (337-TA-823)

By Eric Schweibenz
|
Jun
27
On June 17, 2013, the International Trade Commission (the “Commission”) issued a notice in Certain Kinesiotherapy Devices and Components Thereof (Inv. No. 337-TA-823).  In the notice, the Commission determined that Respondents LELO Inc.; PHE, Inc. d/b/a Adam & Eve; Nalpac Enterprises, Ltd.; E.T.C. Inc.; Honey’s Place Inc.; and Lover’s Lane & Co. violated Section 337 in connection with the importation and sale of kinesiotherapy devices that infringe certain claims of U.S. Patent No. 7,931,605 (the ‘605 patent).  The Commission issued a general exclusion order, cease and desist orders against Respondents, and terminated the investigation. By way of background, the investigation is based on a December 2, 2011 complaint filed by Standard Innovation Corporation and Standard Innovation (US) Corp. (collectively, “Standard Innovation”) alleging violation of Section 337 in the importation into the U.S. and sale of certain kinesiotherapy devices and components thereof that infringe one or more claims of the ‘605 patent and U.S. Patent No. D605,779 (the D‘779 patent).  Standard Innovation withdrew the D‘779 patent from the investigation.  An evidentiary hearing was held in August 2012.  On February 8, 2013, ALJ Pender issued an Initial Determination (“ID”) construing the terms of the asserted claims and finding the ‘605 patent valid and infringed, but finding no violation of Section 337 on the grounds that Standard Innovation did not satisfy the economic prong of the domestic industry requirement.  See our February 11, 2013 post for more details. On March 25, 2013, the Commission determined to review the ID in its entirety.  See our March 27, 2013 post for more details.  After examining the record, petitions for review, and the parties’ submissions, the Commission determined that Standard Innovation satisfied both the technical and economic prongs of the domestic industry requirement and that there is a violation of Section 337 with respect to claims 1-7, 9-21, 23, 24, 33-40, 42-54, 56, 57, 66-73, 75-87, 89, and 90 of the ‘605 patent. The notice further states that the Commission determined that the appropriate remedy is both a general exclusion order prohibiting the unlicensed entry into the United States of kinesiotherapy devices and components thereof that infringe any of the above claims, and cease and desist orders prohibiting each of the remaining Respondents from importing, selling, marketing, advertising, distributing, offering for sale, transferring (except for exportation), and soliciting U.S. agents or distributors for infringing kinesiotherapy devices.  The Commission also determined that the public interest factors enumerated in Section 337(d)(1) and (f)(1) do not preclude the issuance of a general exclusion order and the cease and desist orders.  As to the issuance of a general exclusion order, the Commission determined that there is a pattern of violation of Section 337 and that it is difficult to identify the source of the infringing products.  Finally, the Commission determined that a bond in the amount of zero percent of the entered value is required to permit temporary importation during the Presidential review period.
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ITC Decides To Review In Part Initial Determination In Certain Semiconductor Chips with DRAM Circuitry (337-TA-819)

By Eric Schweibenz
|
Jul
08
On July 2, 2013, the International Trade Commission (the “Commission”) issued a notice determining to review in part an Initial Determination (“ID”) issued by ALJ E. James Gildea on March 26, 2013 finding a violation of Section 337 in Certain Semiconductor Chips with DRAM Circuitry, and Modules and Products Containing Same(Inv. No. 337-TA-819). By way of background, the Complainants in this investigation are Elpida Memory, Inc. and Elpida Memory (USA) Inc. (collectively, “Elpida”) and the Respondents are Nanya Technology Corp. and Nanya Technology Corp., U.S.A. (collectively, “Nanya”).  In the ID, ALJ Gildea determined that a violation of Section 337 had occurred by Nanya in the importation into the U.S. and sale of certain semiconductor chips with DRAM circuitry, and modules and products containing same that infringe U.S. Patent Nos. 6,150,689 (the ‘689 patent), 6,635,918 (the ‘918 patent), 7,495,453 (the ‘453 patent), 7,713,828 (the ‘828 patent), and 7,906,809 (the ‘809 patent).  However, the ALJ found no violation of Section 337 with respect to U.S. Patent No. 7,659,571 (the ‘571 patent).  In particular, ALJ Gildea found that Nanya does not infringe the ‘571 patent and that there is no domestic industry that practices the ‘571 patent.  ALJ Gildea also found that certain claims of the ‘453 patent are invalid.  See our April 3, 2013 post for more details. According to the July 2 notice, Elpida filed a petition for review of the ALJ’s determination that certain claims of the ‘453 patent are invalid.  In addition, Nanya filed a petition for review of a number of the determinations in the ID that were adverse to it.  Nanya also filed a contingent petition for review with respect to the validity of the ‘571 patent. After examining the record of the investigation, including the ID and the parties’ submissions, the Commission determined to review the ID in part.  In particular, the Commission determined to review ALJ Gildea’s determinations with respect to the ‘689, ‘918, ‘453, ‘828, and ‘809 patents.  The Commission determined not to review the ALJ’s determination of no violation with respect to the ‘571 patent, and terminated the investigation with respect to that patent. The notice states that the parties are requested to brief their positions on the issues under review.  The notice further states that, in connection with the Commission’s review, the Commission is particularly interested in responses to various questions listed in the notice.  The notice also requests briefing on remedy, the public interest, and bonding.  Written submissions are due by July 19, 2013, with reply submissions due by July 26, 2013.
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ITC Decides to Review-In-Part Remand Initial Determination in Certain Video Game Systems (337-TA-770)

By Eric Schweibenz
|
Jul
10
On July 8, 2013, the International Trade Commission (the “ITC” or 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 May 7, 2013 remand initial determination (“RID”), 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).  See our March 23, 2011 and April 21, 2011 posts for more details on the complaint and notice of investigation. On August 31, 2012, ALJ Bullock issued an initial determination (“ID”) finding no violation of Section 337 by Nintendo in this investigation with respect to the patents-at-issue.  See our October 12, 2012 post for more details.  On November 6, 2012, the Commission issued a notice indicating that the Commission revised the claim construction of “toy wand,” and in light of this construction, remanded the case to ALJ Bullock to determine infringement, validity, and domestic industry of the ‘917 and ‘742 patents.  See our November 8, 2012 and November 12, 2012 posts for more information about the Commission’s prior notice and opinion. ALJ Bullock determined on remand that Nintendo does not infringe claim 7 of the ‘917 patent and does not contributorily infringe claim 24 of the ‘742 patent.  The ALJ also held that claim 7 of the ‘917 patent is neither anticipated not obvious, and that claim 24 of the ‘742 patent is not obvious.  Further, ALJ Bullock held that the technical prong of the domestic industry requirement is satisfied for both patents (although he previously determined that the economic prong was not met).  See our May 9, 2013 post for more details on the remand determination. According to the notice, CK filed a petition for review of the remand ID regarding the economic prong of the domestic industry requirement, as well as the findings in the RID related to infringement.  Nintendo also filed a petition for review challenging the ALJ’s findings with regard to the nonobviousness of claim 24 of the ‘742 patent. The Commission has determined to review the following issues from the RID:  (i) direct infringement of the ‘917 patent; (ii) indirect infringement of the ‘742 patent; (iii) nonobviousness of claim 24 of the ‘742 patent; and (iv) whether the technical prong of the domestic industry requirement is met for both patents.  The Commission also noted that several issues from the ID are still under review, including direct infringement of the ‘742 patent, validity in relation to enablement and written description, and the economic prong of the domestic industry requirement.  The notice states that the parties are requested to brief their positions on the issues under review.  The notice further states that the Commission is particularly interested in responses to ten specific questions listed in the notice.  The notice also requests briefing on remedy, the public interest, and bonding issues. Written submissions are due by July 18, 2013, with reply submissions due by July 25, 2013.
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ITC Grants Motion To Terminate Respondents In Consolidated Enforcement and Modification Proceedings In Certain Dimmable Compact Fluorescent Lamps (337-TA-830)

By Eric Schweibenz
|
Jul
30
On July 26, 2013, the U.S. International Trade Commission issued a notice determining to grant motions to terminate  the consolidated enforcement and modification proceedings in Certain Dimmable Compact Fluorescent Lamps and Products (Inv. No. 337-TA-830).

By way of background, the Commission instituted this investigation on February 22, 2012 based on a complaint filed by Neptun Light, Inc. and Andrzej Bobel (collectively, “Neptun”) alleging violation of Section 337 by reason of infringement of various claims of U.S. Patent Nos. 5,434,480 and 8,035,318 by several respondents, including MaxLite, Inc. (“MaxLite”).  See our February 23, 2012 post for more details.  On July 25, 2012, the Commission terminated the investigation as to MaxLite and entered a consent order preventing MaxLite from importing dimmable compact fluorescent lamps (“CFLs”) that infringed claim 9 of the ‘480 patent.

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ITC Reviews ALJ Essex’s Initial Determination And Finds No Domestic Industry In Certain Products Having Laminated Packaging (337-TA-874)

By Eric Schweibenz
|
Aug
08
On August 6, 2013, the International Trade Commission (the “Commission”) issued a notice in Certain Products Having Laminated Packaging, Laminated Packaging, and Components Thereof (Inv. No. 337-TA-874).  In the notice, the Commission determined to review ALJ Theodore R. Essex’s July 5, 2013 Initial Determination (“ID”) finding Complainant Lamina Packaging Innovations LLC (“Lamina”) did not satisfy the economic prong of the domestic industry requirement.  On review, the Commission determined to reverse the ALJ’s findings regarding the Commission’s authority to direct the issuance of an early ID.  The Commission also determined that Lamina has not satisfied the economic prong of the domestic industry requirement.  Accordingly, the Commission terminated this investigation with a finding of no violation of Section 337.  By way of background, Lamina alleged a violation of Section 337 in the importation into the U.S. and sale of certain products having laminated packaging, laminated packaging and components thereof that infringe one or more claims of U.S. Patent Nos. 6,207,242 and 7,348,067.  See our February 21, 2013 post for more details on Lamina’s complaint. The Notice of Investigation in this case instructed the presiding ALJ to “hold an early evidentiary hearing, find facts, and issue an early decision, as to whether the complainant has satisfied the economic prong of the domestic industry requirement.”  Further, the ITC stated that it expected “the issuance of an early ID relating to the economic prong of the domestic industry requirement within 100 days of institution, except that the presiding ALJ may grant a limited extension of the ID for good cause shown.”  Significantly, the Notice of Investigation further noted that the “issuance of an early ID finding that the economic prong of the domestic industry requirement is not satisfied shall stay the investigation unless the Commission orders otherwise; any other decision shall not stay the investigation or delay the issuance of a final ID covering the other issues of the investigation.”  See our March 25, 2013 post for more details on the ITC’s notice of investigation. According to the ID, on May 16, 2013, Lamina filed an objection to the Commission’s order set forth in the notice of investigation, arguing that it was “arbitrary and capricious” and not in accordance with the law.  Lamina argued that the special procedures set forth in the notice of investigation prejudiced Lamina and violated Lamina’s rights under the Administrative Procedure Act (APA).  Thus, Lamina requested that the hearing on the economic prong of the domestic industry requirement be postponed and rescheduled to take place later in the investigation and in accordance with normal ITC practice.  At the evidentiary hearing, ALJ Essex overruled Lamina’s objection and ordered the hearing to proceed.  However, in the ID, ALJ Essex stated that upon further review, he had decided to change his ruling on Lamina’s objection to the Commission’s order.  Specifically, the ID states that “[i]n the case before the ITC, the Commission has sought to deviate from its rules to achieve a desired result; however the Commission has not articulated what the desired result is.”  Further, “[t]his deviation is without a justification that the cause of justice requires it, nor is any other explanation offered as to why the Commission has abandoned its rules.”  Thus, “[w]ithout such an explanation, and adherence to the APA, the deviation is fatal to the cause.”  Accordingly, “[a]bsent the instructions contained in the Notice in this matter, the judge would find the proceedings as conducted to be in violation of law and would proceed to hearing consistent with the rules of the ITC and APA.” Nevertheless, ALJ Essex further stated that if the Commission should disagree with his ruling on Lamina’s objection, then he finds in the alternative that Lamina has not satisfied the economic prong of the domestic industry requirement.  See our July 15, 2013 post for more details on ALJ Essex’s ID in this matter.    The Commission’s August 6, 2013 notice indicates that the “Commission’s reasoning in support of its determinations will be set forth more fully in a forthcoming opinion.”   This investigation is the first one using the ITC’s new pilot program that seeks to collect facts and issue an early ruling on the domestic industry issue.  See our June 27, 2013 post for more details on the ITC’s new pilot program.
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ITC Imposes Import Ban On Popular Samsung Products In Certain Electronic Digital Media Devices (337-TA-796)

By Eric Schweibenz
|
Aug
12
On August 9, 2013, the International Trade Commission (“the Commission”) issued a notice finding a violation of Section 337 and issuing a limited exclusion order and cease and desist orders against Respondents Samsung Electronics Co., Ltd.; Samsung Electronics America, Inc. (“SEA”); and Samsung Telecommunications America, LLC (“STA”) (collectively, “Samsung”) in Certain Electronic Digital Media Devices and Components Thereof (Inv. No. 337-TA-796).    By way of background, the investigation is based on a complaint filed by Apple, Inc. (“Apple”) alleging a violation of Section 337 by Samsung for importation into the U.S. and sale of certain electronic digital media devices.  See our August 2, 2011 post for more details on the Notice of Investigation in this matter. On October 24, 2012, ALJ Pender issued an Initial Determination (“ID”), which found that Samsung violated Section 337 by infringement of certain valid claims of U.S. Patent Nos. D618,678; 7,479,949 (the ‘949 patent); RE 41,922 (the ‘922 patent); and 7,912,501 (the ‘501 patent).  See our January 22, 2013 post for more details on the public version of the ID.  On January 23, 2013, the International Trade Commission (the “Commission”) issued a notice determining to review the ID in its entirety.  Additionally, the Commission remanded the investigation to ALJ Pender to consider certain issues related to the ‘922 patent and the ‘501 patent.  See our January 24, 2013 post for more details. On March 26, 2013, ALJ Pender issued the subject Remand ID finding that claims 34 and 35 of the ‘922 patent are infringed by the text-selection feature of Samsung’s accused products and that claim 3 of the ‘501 patent is not infringed.  See our April 8, 2013 post for more details.  Both Apple and Samsung petitioned for review of the Remand ID.  On May 28, 2013, the Commission issued a notice determining to review the Remand ID in its entirety.  See our May 31, 2013 post for more details.   According to the August 9, 2013 notice, the Commission determined that:
Apple has proven a violation of section 337 based on articles that infringe claims 1, 4-6, 10, and 17-20 of the ‘949 patent and claims 1-4 and 8 of the ‘501 patent.  Specifically, with respect to the ‘949 patent, the Commission has determined to affirm the ALJ’s constructions of disputed claim terms and his conclusion that Apple has proven a violation of section 337 based on articles that infringe claims 1, 4-6, 10, and 17-20 of the ‘949 patent.  The Commission affirms, with modified reasoning, the ALJ’s conclusion that Apple failed to prove that Samsung contributorily infringes claims 11-16 of the ‘949 patent.  The Commission, however, has determined to reverse the ALJ’s conclusion that Apple has proven that Samsung induced infringement of claims 11-16 of the ‘949 patent.  With some modifications to the ALJ’s analysis, the Commission has also determined that the record supports the ALJ’s conclusions that the Continuum SCH-1400 infringes all of the asserted claims of the ‘501 patent; that the accused Samsung devices represented by Transform SPH-M920 infringe claims 1-2 and 8, but not claims 3 and 4 of the ‘501 patent; and that the accused Samsung devices represented by Galaxy Tab 7.0 and Galaxy S II do not infringe any of the asserted claims of the ‘501 patent.  The Commission has further determined that the asserted claims of the ‘949 and the ‘501 patents have not been proven by Samsung to be invalid and that Apple has proven that a domestic industry exists in the United States relating to articles protected by the ‘949 and the ‘501 patents.     In addition, the Commission has determined that Apple has not proven a violation based on alleged infringement of the D’678, the D’757, the ‘922, and the ‘697 patents.  Specifically, the Commission has determined that the asserted claim of the D’678 patent is valid but not infringed, and that Apple’s iPhone, iPhone 4 and iPhone 4s practice the D’678 patent, but not the iPhone 3G and iPhone 3GS.  The Commission has also determined that the asserted claim of the D’757 patent is valid but not infringed, and Apple’s iPhone 3G and 3GS do not practice the D’757 patent.  With some modifications to the ALJ’s analysis for the ‘922 patent, the Commission has determined to affirm the ALJ’s constructions of disputed claim terms, and the ALJ’s conclusion that Apple failed to prove that Samsung contributorily infringes the asserted claims of the ‘922 patent.  The Commission, however, has determined to reverse the ALJ’s conclusion that Apple has proven that Samsung induced infringement of the asserted claims of the ‘922 patent.  With respect to the ‘697 patent, the Commission has determined to modify the ALJ’s construction and application of certain disputed terms in the asserted claims.  Under the modified constructions, the Commission has determined that Apple has proven that the accused Samsung devices infringe the asserted claims of the ‘697 patent and that Apple’s domestic industry products practice the ‘697 patent.  The Commission, however, ultimately finds that Apple has not proven a violation of section 337 with respect to the ‘697 patent because Samsung has proven with clear and convincing evidence that the asserted claims are invalid as anticipated by the YP-T7J media player.  The Commission has further determined that Apple has proven a domestic industry exists in the United States relating to articles protected by the D’678, the ‘922 and the ‘697 patents, but not the D’757 patent.   The Commission has determined that the appropriate remedy is a limited exclusion order prohibiting Samsung from importing certain electronic digital media devices that infringe one or more of claims 1, 4-6, 10, and 17-20 of the ‘949 patent and claims 1-4 and 8 of the ‘501 patent.  The Commission has also determined to issue cease and desist orders prohibiting SEA and STA from further importing, selling, and distributing articles that infringe one or more of claims 1, 4-6, 10, and 17-20 of the ‘949 patent and claims 1-4 and 8 of the ‘501 patent in the United States.  The orders do not apply to the adjudicated design around products found not to infringe the asserted claims of the ‘949 patent and the ‘501 patents as identified in the Final ID.  The Commission has carefully considered the submissions of the parties and the public and has determined that the public interest factors enumerated in section 337(d)(1) and (f)(1) do not preclude issuance of the limited exclusion order and cease and desist orders. Finally, the Commission has determined that excluded mobile phones, media players, and tablet computers may be imported and sold in the United States during the period of Presidential review (19 U.S.C. § 1337(j)) with the posting of a bond in the amount of 1.25 percent of the entered value.  The Commission’s order and opinion were delivered to the President and to the United States Trade Representative on the day of their issuance.
The Commission's decision in favor of Apple in this investigation comes on the heels of President Obama’s recent decision to disapprove of the Commission’s determination to issue an exclusion order and a cease and desist order against various Apple products in Certain Electronic Devices, Including Wireless Communication Devices, Portable Music and Data Processing Devices, and Tablet Computers (Inv. No. 337-TA-794).  See our August 5, 2013 post for more details.
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ITC Decides To Review Initial Determination in Certain Wireless Devices with 3G Capabilities (337-TA-800)

By Eric Schweibenz
|
Sep
10
On September 4, 2013, the International Trade Commission (the “Commission”) issued a notice determining to review in its entirety the Initial Determination (“ID”) issued by ALJ David P. Shaw on June 28, 2013 finding no violation of Section 337 in Certain Wireless Devices with 3G Capabilities and Components Thereof (Inv. No. 337-TA-800). By way of background, this investigation is based on a July 26, 2011 complaint filed on behalf of InterDigital Communications, LLC, InterDigital Technology Corporation, and IPR Licensing (collectively, “InterDigital”) alleging violation of Section 337 by Respondents Huawei Technologies Co., Ltd., FutureWei Technologies, Inc. d/b/a Huawei Technologies (USA), ZTE Corp., ZTE (USA) Inc., and Nokia (collectively, “Respondents”) in the importation into the U.S. and sale of certain wireless devices with 3G capabilities and components thereof that infringe one or more claims of U.S. Patent Nos. 7,349,540; 7,502,406; 7,536,013; 7,616,970 (the ‘970 patent); 7,706,332; 7,706,830; and 7,970,127.  See our July 28, 2011 post for more details. As summarized in our July 2, 2013 post, ALJ Shaw issued an ID finding no violation of Section 337 based on a finding that the accused products do not infringe some claims, and although some claims in the ‘970 patent were found to be infringed, these claims were determined to be invalid. According to the September 4 notice, the parties filed petitions for review of the ID. After examining the record of the investigation, including the ID and the parties’ submissions, the Commission determined to review the final ID in its entirety.  The notice states that the parties are requested to brief their positions on the issues under review, and that the Commission is particularly interested in responses to the question posed in the notice related to whether establishing a domestic industry based on licensing requires proof of “articles protected by the patent.”  However, the Commission stated it is not interested in receiving written submissions addressing remedy, the public interest, or bonding at this time. Written submissions are due by September 27, 2013, with reply submissions due by October 4, 2013.
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ITC Decides To Review Initial Determination In Certain Rubber Resins (337-TA-849)

By Eric Schweibenz
|
Sep
12
On September 9, 2013, the International Trade Commission (the “Commission”) issued a notice determining to review in its entirety the Initial Determination (“ID”) issued by ALJ Robert K. Rogers on June 17, 2013 finding a violation of Section 337 in Certain Rubber Resins and Processes for Manufacturing Same (Inv. No. 337-TA-849). By way of background, this investigation is based on a May 21, 2012 complaint filed by SI Group, Inc. (“SI Group”) alleging violation of Section 337 in the importation into the U.S. and sale of certain rubber resins made using misappropriated SI Group trade secrets.  See our June 22, 2012 post for more details on this investigation. As summarized in our June 28, 2013 post, ALJ Rogers issued an ID finding a violation of Section 337.  The ALJ determined that valid trade secrets were misappropriated and that SI Group showed that it had a valid domestic industry that was injured as a result of importation of resins made using the misappropriated trade secrets. According to the September 9 notice, the parties filed petitions for review of the ID. After examining the relevant portions of the record of the investigation, including the ID and the parties’ submissions, the Commission determined to review the final ID in its entirety.  The notice states that the parties are requested to brief their positions on the issues under review, and that the Commission is particularly interested in responses to a question posed in the notice that was redacted to protect confidential business information.  The Commission is also interested in receiving written submissions on remedy, the public interest, and bonding. Written submissions are due by September 23, 2013, with reply submissions due by September 30, 2013.
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ITC Finds No Violation Of Section 337 In Certain Video Game Systems (337-TA-770)

By Eric Schweibenz
|
Sep
13
On September 12, 2013, the International Trade Commission (the “ITC” or 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 affirm, with modifications the ALJ’s finding of no violation of Section 337.  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).  See our March 23, 2011  and April 21, 2011 posts for more details on the complaint and notice of investigation, respectively. On August 31, 2012, ALJ Bullock issued an initial determination (“ID”) finding no violation of Section 337 by Nintendo in this investigation with respect to the patents-at-issue.  See our October 12, 2012 post for more details.  On November 6, 2012, the Commission issued a notice indicating that the Commission revised the claim construction of “toy wand,” and in light of this construction, remanded the case to ALJ Bullock to determine infringement, validity, and domestic industry of the ‘917 and ‘742 patents.  See our November 8, 2012 and November 12, 2012 posts for more information about the Commission’s prior notice and opinion. ALJ Bullock determined on remand that Nintendo does not infringe claim 7 of the ‘917 patent and does not contributorily infringe claim 24 of the ‘742 patent.  The ALJ also held that claim 7 of the ‘917 patent is neither anticipated not obvious, and that claim 24 of the ‘742 patent is not obvious.  Further, ALJ Bullock held that the technical prong of the domestic industry requirement is satisfied for both patents (although he previously determined that the economic prong was not met).  See our May 19, 2013 post for more details on the remand determination.  Only July 8, 2013, the Commission determined to review certain issues in the remand determination.  See our July 10, 2013 post for more details. According to the September 12, 2013 notice, the Commission determined:
to affirm, with modifications, the ALJ’s finding of no violation of Section 337.  Specifically, the Commission has determined to affirm, with modifications, the ALJ’s finding that claim 7 of the ‘917 patent and claim 24 of the ‘742 patent are invalid for lack of enablement and for lack of written description, and that complainant has not shown that the domestic industry requirement is met with respect to the ‘917 and ‘742 patents.  The Commission has determined that complainant has not shown that the accused products directly infringe claim 7 of the ‘917 patent because they do not meet the limitation “command,” and that complainant has not shown that the accused products directly infringe claim 24 of the ‘742 patent because they do not meet the limitation “activate or control.”  The Commission has also determined that complainant has not shown that the independently sold Wii MotionPlus and Nunchuck accessories contributorily infringe claim 24 of the ‘742 patent.  Lastly, the Commission has determined that respondent has not shown that claim 24 of the ‘742 patent is obvious.
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ITC Names New Administrative Law Judge

By Eric Schweibenz
|
Sep
24
On September 23, 2013, the International Trade Commission issued a press release announcing that Judge Sandra (Dee) Lord will become an administrative law judge at the ITC. The press release relating to ALJ Lord states:
Irving A. Williamson, Chairman of the United States International Trade Commission (USITC), announced today that Judge Sandra (Dee) Lord has joined the USITC as an Administrative Law Judge (ALJ).  Lord will manage litigation, preside over evidentiary hearings, and make initial determinations in the agency's investigations involving unfair practices in import trade.  These investigations most often involve allegations of patent and trademark infringement. Prior to joining the USITC, Lord served as an ALJ with the Social Security Administration's Office of Disability Adjudication and Review (National Hearing Center) in Falls Church, VA.  Previously, she was an ALJ in the Social Security Administration's Raleigh Hearing Office in Raleigh, NC. Lord served as a Special Master in the U.S. Court of Federal Claims' Office of Special Masters from 2009-2012. From 1997 to 2008, Lord was a trial attorney in the Commercial Litigation Branch/Frauds section in the Department of Justice's Civil Division. Prior to that, she was Of Counsel at the Washington, DC, law firm of Ross, Dixon & Masback (now Troutman Sanders, LLC); served as Associate General Counsel at the Howard Hughes Medical Institute in Bethesda, MD; and was an Assistant Counsel for Appellate Litigation in the U.S. Department of Labor's Office of the Solicitor. Lord holds a juris doctor degree from the Georgetown University Law Center and a bachelor of arts degree, summa cum laude, from Yale University.  She is a member of the bars of the District of Columbia and the State of Maryland.
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ITC Decides To Review Initial Determination In Certain Audiovisual Components (337-TA-837)

By Eric Schweibenz
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Oct
25
On October 17, 2013, the International Trade Commission (the “Commission”) issued a notice determining to review in its entirety the Initial Determination (“ID”) issued by ALJ David P. Shaw on July 18, 2013 finding a violation of Section 337 in Certain Audiovisual Components and Products Containing the Same (Inv. No. 337-TA-837).  By way of background, the investigation is based on a March 2, 2012 complaint filed by LSI Corporation and its subsidiary Agere Systems Inc. (collectively, “Complainants”) alleging violation of Section 337 with regard to certain audiovisual components and products containing the same including, certain digital televisions, Blu-ray disc players, home theater systems, DVD players and/or recorders that infringe one or more claims of U.S. Patent Nos. 5,870,087 (the ‘087 patent), 6,982,663 (the ‘663 patent), 6,452,958 (the ‘958 patent), and 6,707,867 (the ‘867 patent).  See our April 13, 2012 post for more details on the investigation.  On March 7, 2013, the ALJ granted a motion to terminate the investigation as to certain claims of those patents.  As of the date of the ID, the remaining respondents in the investigation were Funai Electric Company, Ltd., Funai Corporation, Inc., P&F USA, Inc., and Funai Service Corporation (collectively, “Funai”) and Realtek Semiconductor Corporation (“Realtek”). In the ID, ALJ Shaw found a violation of Section 337 had occurred with respect to claims 1, 5, 7-11, and 16 of the ‘087 Patent but that no violation had occurred with respect to the remaining asserted claims of the ‘663, ‘958, and ‘867 Patents.  See our September 16, 2013 post for more details. According to the October 17 notice, the parties filed petitions for review of the ID. After examining the relevant portions of the record of the investigation, including the ID and the parties’ submissions, the Commission determined to review the final ID in its entirety.  The notice states that the parties are requested to brief twelve specifically enumerated issues.  The Commission stated that other issues are adequately presented in the parties’ existing filings.  The Commission is also interested in receiving written submissions on remedy, the public interest, and bonding, and noted specific questions that may be relevant in this regard related to the patents that have been declared standard essential and the licensing of these patents. Written submissions are due by November 1, 2013, with reply submissions due by November 11, 2013.
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ITC Finds No Violation Of Section 337 In Certain Products Containing Interactive Program Guide And Parental Control Technology (337-TA-845)

By Eric Schweibenz
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Nov
13
On November 1, 2013, the International Trade Commission (the “ITC” or the “Commission”) issued a notice in Certain Products Containing Interactive Program Guide and Parental Control Technology (Inv. No. 337-TA-845).  In the notice, the Commission determined to affirm with modified reasoning the ALJ’s finding of no violation of Section 337. By way of background, the investigation is based on a May 1, 2012 complaint filed by Rovi Corporation; Rovi Guides, Inc.; Rovi Technologies Corporation; Starsight Telecast, Inc.; United Video Properties, Inc.; and Index Systems, Inc. (collectively, “Rovi”) alleging violation of Section 337 in the importation into the U.S. and sale of certain products containing interactive program guide and parental control technology that infringe one or more claims of U.S. Patent Nos. 6,701,523; 6,898,762; 7,065,709; 7,103,906; 7,225,455; 7,493,643; and 8,112,776.  See our May 3, 2012 and June 4, 2012 posts for more details on the complaint and notice of investigation, respectively.  Numerous Respondents have been terminated from the investigation, and only Netflix Inc. (“Netflix”) and Roku, Inc. (“Roku”) remain.  On June 7, 2013, ALJ David P. Shaw issued his initial determination (“ID”) finding no violation of Section 337 by Netflix and Roku based upon findings of invalidity and non-infringement of the asserted patents.  He also found that none of the accused products met the importation requirement of Section 337.  ALJ Shaw also found that, while the technical prong of the domestic industry requirement was met, the economic prong, based on licensing the asserted patents, was not.  See our June 11, 2013 post for more details on the ID. On August 9, 2013, the Commission determined to review the ID in its entirety, and requested written submissions on seven issues, as well as on remedy, bond, and the public interest.  After examining the record of the investigation, including the ID and the parties’ submissions, the Commission determined that Rovi did not prove a violation of Section 337.  More particularly, the Commission affirmed the ALJ’s finding that the importation requirement was not met, though with modified reasoning.  The Commission also affirmed with modified reasoning the ALJ’s determinations of validity and noninfringement.  In addition, the Commission modified the ALJ’s claim construction, and under this modified claim construction, reversed the ALJ’s determination that the technical prong of the domestic industry requirement was met by Rovi with regard to one of the patents.  However, the finding that a domestic industry exists with regard to the remaining patents was affirmed, with the Commission noting that both prongs were met without reaching the issue of substantial investments in licensing.  Lastly, the notice indicated that a Commission opinion will issue shortly.
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ITC Decides To Review Initial Determination In Certain Wireless Consumer Electronics Devices (337-TA-853)

By Eric Schweibenz
|
Dec
02
On November 25, 2013, the International Trade Commission (the “Commission”) issued a notice determining to review in part the Initial Determination (“ID”) issued by ALJ E. James Gildea on September 6, 2013 finding no violation of Section 337 in Certain Wireless Consumer Electronics Devices and Components Thereof (Inv. No. 337-TA-853). By way of background, this investigation is based on a July 24, 2012 complaint filed by Technology Properties Limited LLC, Phoenix Digital Solutions LLC, and Patriot Scientific Corporation (collectively, “Complainants”) alleging violation of Section 337 in the importation into the U.S. and sale of certain wireless consumer electronics devices and components thereof that infringe one or more claims of U.S. Patent No. 5,809,336 (the ‘336 patent).  See our July 26, 2012and August 24, 2012 posts for more details on the complaint and notice of investigation, respectively. In the ID, ALJ Gildea found that no violation of Section 337 had occurred.  ALJ Gildea further determined that a domestic industry exists that practices the ‘336 patent.  See our November 5, 2013 post for more details. According to the November 25, 2013 notice, the parties filed petitions for review of the ID. After examining the relevant portions of the record of the investigation, including the ID and the parties’ submissions, the Commission determined to review-in-part the ID.  The Commission has determined to review the ID’s findings concerning claim construction and infringement of claims 6 and 13 of the ‘336 patent for all accused products, except for the accused products listed on page eighty-eight of the ID.  The Commission also determined to review the ID’s findings of domestic industry.  The notice states that the parties are requested to brief four specifically enumerated issues.  The Commission stated that the parties’ existing filings adequately present the other issues. Written submissions are due by December 23, 2013, with reply submissions due by December 30, 2013.
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ITC Issues Limited Exclusion Order And Cease And Desist Orders In Certain Electronic Devices Having Placeshifting Or Display Replication Functionality (337-TA-878)

By Eric Schweibenz
|
Dec
03
On December 2, 2013, the International Trade Commission (the “Commission”) issued a notice in Certain Electronic Devices Having Placeshifting or Display Replication Functionality and Products Containing Same (Inv. No. 337-TA-878). By way of background, this investigation is based on a March 12, 2013 complaint filed by Complainant Sling Media, Inc. (“Sling Media”).  The respondents in the investigation were Monsoon Multimedia, Inc. (“Monsoon”); C2 Microsystems, Inc. (“C2 Microsystems”) (collectively “the Defaulting Respondents”); and Belkin International, Inc. (“Belkin”).  See our April 15, 2013 post for more details on this investigation.  On June 5, 2013, ALJ Pender issued an initial determination terminating the investigation as to Belkin based on a settlement agreement.  See our June 7, 2013 post for more details.  In response to a show cause order, Monsoon moved to terminate the investigation based on a consent order.  ALJ Pender rejected this motion and found Monsoon in default.  See our July 16, 2013 post for more details.  C2 Microsystems did not respond to their show cause order and, likewise, were found in default.  According to the Order, the Commission determined to issue a limited exclusion order and cease and desist orders directed to the Defaulting Respondents.  The Limited Exclusion Order prohibits the unlicensed entry of Defaulting Respondents’ infringing products.  The Cease and Desist Orders “prohibit, inter alia, the importation, sale, advertising, marketing, and distribution of covered products in the United States by the Defaulting Respondents.”  Lastly, the Commission ordered that the bond for importation during the period of Presidential review be set at 100 percent of the entered value of Defaulting Respondents’ imported products.
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ITC Issues Cease And Desist Orders In Certain Ground Fault Circuit Interrupters (337-TA-739)

By Eric Schweibenz
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Dec
03
On December 2, 2013, the International Trade Commission (the “Commission”) issued a notice regarding the issuance of cease and desist orders and termination of the investigation in Certain Ground Fault Circuit Interrupters and Products Containing Same (Inv. No. 337-TA-739). By way of background, the Commission issued its final determination on April 27, 2012 finding a violation of Section 337 with respect to U.S. Patent No. 7,737,809 (the ‘809 patent).  Regarding remedy, the Commission issued a general exclusion order and a cease and desist order.  See our February 27, 2013 post for more details.  On August 29, 2012, Complainant Leviton Manufacturing Co., Inc. (“Leviton”) filed a complaint to institute enforcement proceedings.  Following settlement by several respondents, Respondents American Electric Depot Inc. (“AED”); Shanghai ELE Manufacturing Corp. (“Shanghai ELE”); and Shanghai Jia AO Electrical Co., Ltd. (“Shanghai Jia AO”) (collectively, the “Defaulting Respondents”) remained in the proceeding.  On May 22, 2013, ALJ Bullock issued a recommended determination on remedy, which recommended that the Commission issue a cease and desist order prohibiting AED from selling or distributing infringing articles in the U.S.  See our July 9, 2013 post for more details. According to the Commission’s notice, the Commission determined that the appropriate form of relief consists of cease and desist orders direct to the Defaulting Respondents.  Specifically, the Commission’s Order prohibits the Defaulting 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 ground fault circuit interrupters and products containing the same that infringe one or more of claims 1-4, 6, 8-11, 13, 15-16, 35-37, 39, and 41-46 of the ’809 patent.”  Having resolved all remaining issues in the investigation, the Commission terminated the investigation.
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ITC Decides To Review Initial Determination In Certain Electronic Devices Including Mobile Phones And Tablet Computers (337-TA-847)

By Eric Schweibenz
|
Dec
14
On December 9, 2013, the International Trade Commission (the “Commission) issued a notice determining to review in part the Initial Determination (“ID”) issued by ALJ Thomas B. Pender in Certain Electronic Devices, Including Mobile Phones and Tablet Computers, and Components Thereof (Inv. No. 337-TA-847). By way of background, the investigation is based on a complaint filed on behalf of the Nokia Corporation, Nokia, Inc., and Intellisync Corporation alleging violation of Section 337 in the importation and sale of certain electronic devices, including mobile phones and tablet computers, and components thereof that infringe one or more claims of various patents.  See our May 3, 2012 post for more details.  On August 7, 2012, ALJ Pender granted Google, Inc. status as an Intervenor, but denied status as a Respondent.  See our August 10, 2012 post for more details. In the ID, ALJ Pender found that a violation of Section 337 had occurred with respect to U.S. Patent Nos. 7,415 and 6,393,260, and that the domestic industry requirement was met with regard to those patents.  ALJ Pender also determined that no violation occurred in connection with U.S. Patent No. 5,884,190, and that no domestic industry was established with respect to that patent.  See our November 4, 2013 post for more details. According to the December 9, 2013 notice, the parties filed petitions for review of the ID. After examining the relevant portions of the record of the investigation, including the ID and the parties’ submissions, the Commission determined to review the ALJ’s findings on claim construction, infringement, and the technical prong of the domestic industry requirement in relation to U.S. Patent Nos. 7,415 and 6,393,260.  The Commission also determined to review the striking of testimony witness statements of an expert.  No other portions of the ID will be reviewed. The notice states that the parties are requested to brief five enumerated issues relating to claim construction, infringement, and HTC’s patent exhaustion defense.  The Commission also stated that it is interested in receiving written submissions that address the public interest factors relevant to any potential remedy and bond, and listed four specific public interest issues to be briefed by the parties. Written submissions are due by December 23, 2013, with reply submissions due by January 6, 2014.
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ITC Decides To Review-in-Part Initial Determination In Certain Electronic Imaging Devices (337-TA-850)

By Eric Schweibenz
|
Dec
23
On December 16, 2013, the International Trade Commission (the “Commission") issued a notice determining to review in part the Initial Determination (“ID”) issued by ALJ Theodore R. Essex in Certain Electronic Imaging Devices (Inv. No. 337-TA-850). By way of background, the investigation is based on a complaint filed by Flashpoint Technology, Inc. (“Flashpoint”) alleging a violation of Section 337 in the importation and sale of certain electronic imaging devices that infringe one or more claims of U.S. Patent Nos. 6,504,575 (the ‘575 patent), 6,222,538 (the ‘538 patent), 6,400,471 (the ‘471 patent), and 6,223,190 (the ‘190 patent).  See our May 25, 2012 post for more details on the complaint and our June 27, 2012 post for more information about the Notice of Investigation.  The ITC instituted an investigation on June 25, 2012.  The ‘575 patent was later terminated from the investigation.  The remaining respondents as of the time of the ID were HTC Corporation, HTC America, Inc., Huawei Technologies Co., Ltd., FutureWei Technologies, Inc. d/b/a Huawei Technologies (USA), ZTE Corporation, and ZTE (USA) Inc. In the ID, ALJ Essex determined that a violation of Section 337 had occurred with respect to the ‘538 patent.  See our October 18, 2013 post for more details.  Specifically, the ALJ concluded that two of the accused HTC smartphones (the HTC Vivid and HTC Droid Incredible 4G LTE) infringed the asserted claims, but that none of the other accused devices infringed the asserted patents.  The ALJ also determined that Flashpoint met the economic prong of the domestic industry requirement as to all asserted patents, that the smartphones of Flashpoint’s licensees met the technical prong of the domestic industry requirement as to the ‘538 patent, but not as to the ‘471 or ‘190 patents.  Finally, the ALJ determined that the asserted patents were not invalid in view of the prior art or the on-sale bar and that the ‘190 and ‘538 patents were not unenforceable for failure to name an inventor. After examining the relevant portions of the record of the investigation, including the ID and the parties’ submissions, the Commission determined to review the ALJ’s findings as to the following issues: (1) infringement of the asserted claims of the ‘538 patent by the HTC Vivid and HTC Droid Incredible 4G L TE smartphones, (2) the technical prong of the domestic industry requirement for the ‘538 patent; (3) obviousness of the asserted claims of the ‘538 patent over U.S. Patent No. 5,835,772, U.S. Patent No. 5,740,801, certain “Admitted Prior Art,” U.S. Patent No. 5,638,501, and U.S. Patent No. 5,898,434; (4) claim construction of the term “operating system” in the asserted claims of the ‘471 patent, (5) infringement of the ‘471 patent by the accused products; (6) the technical prong of the domestic industry requirement for the ‘471 patent; (7) anticipation of the asserted claims of the ‘471 patent in view of U.S. Patent No. 5,687,376; (8) infringement of the asserted claim of the ‘190 patent; (9) technical prong of the domestic industry requirement for the ‘190 patent; (10) anticipation and obviousness of the ‘190 patent in view of U.S. Provisional Patent Application 60/037,963; (11) anticipation and obviousness of the ‘190 patent in view of the Zaurus; (12) anticipation and obviousness of the ‘190 patent in view of the Japanese Laid-Open Patent Application No. H09-298678; (13) validity of the ‘538, ‘471, and ‘190 patents in view of the on-sale bar; (14) enforceability of claim 19 of the ‘538 patent with respect to joint inventorship; and (15) the economic prong of the domestic industry requirement with respect to the ‘539, ‘471, and ‘190 patents. The Commission determined not to review any of the remaining issues.  The notice states that the parties are requested to brief fourteen enumerated issues relating to the Federal Circuit’s December 13, 2013 Suprema Inc. v. ITC decision (see more information about this case here), evidence of induced infringement, evidence of direct infringement, anticipation, obviousness, claim construction, domestic industry, and public interest.  The Commission also stated that it is interested in receiving written submissions that address the form of remedy, if any, that should be ordered, the effects of any such remedy on the public interest, and the amount of bond that should be imposed if remedy is ordered. Written submissions are due by January 3, 2014, with reply submissions due by January 10, 2014.
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ITC Terminates Investigation With Finding Of No Section 337 Violation In Certain Computers and Computer Peripheral Devices (337-TA-841)

By Eric Schweibenz
|
Jan
03
On December 19, 2013, the International Trade Commission (the “Commission”) issued a notice terminating the investigation with a finding of no violation of Section 337 in Certain Computers and Computer Peripheral Devices and Components Thereof and Products Containing the Same (Inv. No. 337-TA-841).  By way of background, this investigation is based on a March 27, 2012 complaint filed by Technology Properties Limited LLC alleging violation of Section 337 by a number of Respondents in the importation into the U.S. and sale of certain computers and computer peripheral devices, components thereof, and products containing the same that infringe one or more claims of U.S. Patent Nos. 6,976,623 (the ‘623 patent), 7,162,549 (the ‘549 patent), 7,295,443 (the ‘443 patent), 7,522,424 (the ‘424 patent), 6,438,638 (the ‘638 patent), and 7,719,847 (the ‘847 patent).  See our March 29, 2012 and April 30, 2012 posts for more details on the complaint and notice of investigation, respectively.  On August 2, 2013, ALJ Theodore R. Essex issued his initial determination (“ID”) and found that (1) a violation of Section 337 has occurred in this investigation with respect to claims 1-4 and 9-12 of the ‘623 patent, and (2) no violation of Section 337 has occurred in this investigation with respect to claims 7, 11, 19, and 21 of the ‘549 patent; claims 1, 3, 4, 7, 9, 11, 12, and 14 of the ‘443 patent; claims 25, 26, 28, and 39 of the ‘424 patent; claims 17-19 of the ‘623 patent; and claims 1-3 of the ‘847 patent.  See our August 8, 2013 post for more details on ALJ Essex’s notice of ID.   According to the December 19, 2013 notice, the Commission determined:
For the ‘623 patent, the Commission adopts the respondents’ proposed construction of “accessible in parallel.”  The Commission therefore reverses the ID’s finding of infringement as to that patent.  Based upon that claim construction, the Commission also finds that TPL has not demonstrated the existence of an article protected by the ‘623 patent.  The Commission finds that the Federal Circuit’s decisions in InterDigital Communications, LLC v. ITC, 690 F.3d 1318 (Fed. Cir. 2012), 707 F.3d 1295 (Fed. Cir. 2013) and Microsoft Corp. v. ITC, 731 F.3d 1354 (Fed. Cir. 2013), require a complainant to make such a demonstration regardless of whether the domestic industry is alleged to exist under 19 U.S.C. § 1337(a)(3)(A), (B), or (C). For the ’443, ‘424, and '847 patents, the Commission affirms the ID’s determination that TPL failed to demonstrate that the accused products infringe the asserted claims. The Commission also finds for these three patents that TPL failed to demonstrate the existence of a domestic industry because it failed to demonstrate the existence of articles practicing these patents. TPL did not raise the ’549 patent in its petition for review. 19 C.F.R. § 2l0.43(b)(2). The Commission affirms the ID’s noninfringement finding, and its finding that TPL failed to show that its domestic industry products meet certain claim limitations. The reasons for the Commission’s determinations will be set forth more fully in the Commission’s opinion. Commissioner Aranoff dissents from the Commission’s finding that TPL was required to demonstrate the existence of articles practicing the asserted patents in order to show a domestic industry based on licensing under 19 U.S.C. § 1337(a)(3)(C).
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ITC Decides To Affirm In Part And Modify In Part Initial Determination in Certain Wireless Devices with 3G Capabilities (337-TA-800)

By Eric Schweibenz
|
Jan
03
On December 19, 2013, the International Trade Commission (the “Commission”) issued a notice determining to affirm in part and modify in part the Initial Determination (“ID”) issued by ALJ David P. Shaw on June 28, 2013 finding no violation of Section 337 in Certain Wireless Devices with 3G Capabilities and Components Thereof (Inv. No. 337-TA-800). By way of background, this investigation is based on a July 26, 2011 complaint filed on behalf of InterDigital Communications, LLC, InterDigital Technology Corporation, and IPR Licensing (collectively, “InterDigital”) alleging violation of Section 337 by Respondents Huawei Technologies Co., Ltd., FutureWei Technologies, Inc. d/b/a Huawei Technologies (USA), ZTE Corp., ZTE (USA) Inc., and Nokia (collectively, “Respondents”) in the importation into the U.S. and sale of certain wireless devices with 3G capabilities and components thereof that infringe one or more claims of U.S. Patent Nos. 7,349,540; 7,502,406; 7,536,013; 7,616,970 (the ‘970 patent); 7,706,332; 7,706,830; and 7,970,127.  See our July 28, 2011 postfor more details on this investigation.  Further, as summarized in our July 2, 2013 post, ALJ Shaw issued an ID finding no violation of Section 337 based on a finding that the accused products do not infringe some claims, and although some claims in the ‘970 patent were found to be infringed, these claims were determined to be invalid.  On September 4, 2013, the Commission determined to review the ID.  See our September 10, 2013 post for more details. According to the December 19, 2013 notice, the Commission determined:
to affirm the ALJ’s finding of no violation of section 337 as to Nokia, Huawei, and ZTE with the modifications set forth in the Commission opinion, viz., with respect to the Power Ramp Up patents (the ‘830 and ‘636 patents), the Commission has determined to (1) affirm the ALJ’s finding that the accused products do not satisfy the “successively sends transmissions” limitation construed to mean “transmits to the base station, one after the other, codes that are shorter than a regular length code” to the extent that the “successively sends transmissions” refer to the short codes and (2) for the ‘636 patent, the Commission has determined to vacate the ALJ’s findings regarding the “subsequent transmission” limitation.  With respect to the Power Control patents (the ‘406 and ‘332 patents), the Commission has determined to modify the ALJ’s construction of the claim term “power control bit” to mean “single-bit power control information transmitted at an APC data rate equivalent to the APC update rate,” and construes the limitation to encompass only the “single-bit power control information” portion.  The Commission adopts the ALJ’s findings pertaining to the ‘970, ‘013, and ‘127 patents.  Due to the LG remand, all other issues, including domestic industry, continue to remain under review. A Commission opinion will follow issuance of this notice. 
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