On April 17, 2017, Chief ALJ Charles E. Bullock issued a notice regarding certain evidentiary issues in Certain Mobile and Portable Electronic Devices Incorporating Haptics (Including Smartphones and Laptops) and Components Thereof (337-TA-1004/990).

By way of background, the 337-TA-990 Investigation was instituted based on a complaint filed by Immersion Corp. (“Immersion”) alleging violation of Section 337 by Apple Inc. (“Apple”), AT&T Inc. (“AT&T”), and AT&T Mobility LLC (“AT&T Mobility”) in the importation into the U.S. and sale of certain mobile electronic devices incorporating haptics (including smartphones and smartwatches) and components thereof that infringe one or more claims of U.S. Patent Nos. 8,773,356; 8,619,051; and 8,659,571. See our February 11, 2016 and March 25, 2016 posts for more details on the complaint and Notice of Investigation, respectively.

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For purposes of assessing the ongoing impact of the Commission’s 2011 plan to reduce the role of the Office of Unfair Import Investigations (“OUII”) in Section 337 investigations, we reviewed OUII’s participation rate in newly-instituted Section 337 actions over approximately the last three years.

By way of background, OUII serves, inter alia, as an independent third party representing the public interest in Section 337 actions. One of OUII’s tasks is to help create a complete record on all contested issues so that the Commission can properly enforce the provisions of Section 337. This is important because, unlike with district court litigation, a Section 337 action “is not purely private litigation ‘between the parties’ but rather is an ‘investigation’ by the Government into unfair methods of competition or unfair acts in the importation of articles into the United States.” Young Eng’rs, Inc. v. U.S. Int’l Trade Comm’n, 721 F.2d 1305, 1315 (Fed. Cir. 1983).

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On August 17, 2015, the International Trade Commission issued a press release announcing that Judge MaryJoan McNamara has become an administrative law judge at the ITC.

The press release relating to ALJ McNamara states:

Meredith M. Broadbent, Chairman of the United States International Trade Commission (USITC), announced today that Judge MaryJoan McNamara has joined the USITC as an Administrative Law Judge (ALJ). McNamara 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, McNamara served as an ALJ with the Social Security Administration's Office of Disability Adjudication and Review (National Hearing Center) in Baltimore, MD. Previously, she was a civil litigation attorney in private practice; a consultant to the U.S. Department of State on certain provisions of the Hague Convention; and an EEO specialist in the U.S. Department of Agriculture's Office of Adjudication and Compliance, where she drafted final agency decisions.Earlier in her career, McNamara was an attorney in private practice in Baltimore, MD, and in Boston, MA, where she engaged in complex litigation that included first chair trials and appellate work. Among other positions, McNamara held a position as a Special Assistant Attorney General for Massachusetts and as a Court Conciliator in Lowell Superior Court, Massachusetts. McNamara began her career at the Illinois Bureau of the Budget (now Office of Management and Budget) in Springfield, IL.McNamara holds a juris doctor degree from Northeastern University in Boston, MA; a master's degree from the University of Chicago; and a bachelor's degree from Cornell University. She also completed coursework at the University of Vienna's Institute of European Studies in Austria.

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On September 30, 2014, the U.S. International Trade Commission issued a press release announcing the introduction of 337Info.  According to the press release, 337Info is a new web-based tool that will help users find information about and track Section 337 investigations.

In particular, 337Info is an information retrieval system that contains data about Section 337 investigations, including:

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On June 17, 2014, the ITC issued two press releases announcing that President Barack Obama has designated (1) Meredith Broadbent as Chairman of the U.S. International Trade Commission, and (2) Dean Pinkert as Vice Chairman of the U.S. International Trade Commission.

According to the press release regarding Chairman Broadbent:

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On June 10, 2014, the International Trade Commission (“ITC” or the “Commission”) issued an article regarding statistical facts and trends relating to certain aspects of Section 337 investigations.

According to the article, the number of new Section 337 investigations has remained at elevated levels over the past several years.  While the number of new investigations peaked in calendar year 2011 and has decreased somewhat in the years since, new investigations are still being instituted at historically high levels.  The Commission notes in particular that the number of ancillary proceedings has been increasing in recent years.

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On October 8, 2013, the U.S. Trade Representative, Ambassador Michael B.G. Froman, issued a statement confirming that President Barack Obama would not disapprove of the International Trade Commission’s (the “Commission”) final determination to issue an exclusion order and cease and desist order in Certain Electronic Digital Media Devices and Components Thereof (Inv. No. 337-TA-796).

By way of background, the Complainant in this investigation is Apple Inc. (“Apple”).  On October 24, 2012, ALJ Thomas B. Pender issued an Initial Determination (“ID”) which found that Respondents Samsung Electronics Co., Ltd. and Samsung Telecommunications America, LLC (collectively, “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 Commission issued a notice determining to review the ID in its entirety, and also 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.

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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.

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On August 3, 2013, U.S. Trade Representative, Ambassador Michael B.G. Froman, issued a letter to Chairman Williamson of the U.S. International Trade Commission (the “Commission”) announcing that President Barack Obama disapproves of the Commission’s determination to issue an exclusion order and a cease and desist order in Certain Electronic Devices, Including Wireless Communication Devices, Portable Music and Data Processing Devices, and Tablet Computers (Inv. No. 337-TA-794).   

By way of background, the Complainants in this investigation are Samsung Electronics Co., Ltd. and Samsung Telecommunications America, LLC (collectively, “Samsung”).  On September 14, 2012, ALJ E. James Gildea issued an Initial Determination (“ID”) finding no violation of Section 337 with respect to U.S Patent Nos. 7,706,348 (the ‘348 patent); 7,486,644 (the ‘644 patent); 7,450,114 (the ‘114 patent); and 6,771,980 (the ‘980 patent) by Respondent Apple Inc. (“Apple”).  Specifically, ALJ Gildea found that the ‘348, ‘644, and ‘980 patents were valid but not infringed and that the ‘114 patent was both invalid and not infringed.   The ALJ also found that the economic prong of the domestic industry requirement was satisfied with respect to each of the patents, but that the technical prong was not satisfied for any of the patents.

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On June 24, 2013, the International Trade Commission (“ITC” or the “Commission”) issued a press release stating that the Commission has launched a pilot program “to test whether early rulings on certain dispositive issues in some section 337 investigations could limit unnecessary litigation.”

According to the release, when determining whether or not to institute an investigation, the Commission will identify investigations likely to present a dispositive issue and will direct the presiding Administrative Law Judge (“ALJ”) to expedite discovery, factfinding (including an evidentiary hearing), and determination of the potentially dispositive issue.  The Commission’s goal is for these expedited issues to be determined within 100 days of the institution of the investigation.  The ITC will proceed to the additional merits of the case only if the complainant survives determination of the early dispositive issue.

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