By Eric Schweibenz
On December 14, 2009, the International Trade Commission issued a notice determining to review in its entirety the final initial determination on remand issued by ALJ Theodore R. Essex on October 9, 2009 in Certain Refrigerators and Components Thereof (Inv. No. 337-TA-632).

By way of background, the Complainants in this investigation are Whirlpool Corp., Whirlpool Manufacturing Corp., Whirlpool Patents Co., and Maytag Corp. (collectively, “Whirlpool”) and the Respondents are LG Electronics Corp., Inc., LG Electronics, USA, Inc., and LG Electronics Monterrey, Mexico S.A. de C.V. (collectively, “LG”).  The investigation was instituted on February 21, 2008.  On February 26, 2009, ALJ Essex issued the initial determination, finding no violation of Section 337 with respect to United States Patent No. 6,082,130 (the ‘130 patent).  On April 27, 2009, the Commission decided to review the ID in its entirety and requested briefing by the parties on the issue of claim construction.  In its July 8, 2009 opinion, the Commission (i) modified the ID’s claim construction for the terms “freezer compartment,” “disposed within the freezer department,” and “ice storage bin having a bottom opening,” (ii) affirmed the ID’s construction of the term “ice maker,” and (iii) determined to remand the investigation to the ALJ to make findings regarding infringement, validity, and domestic industry consistent with the Commission’s claim constructions.  See our July 8 post for more details.  On July 22, 2009, LG filed a petition for reconsideration of the Commission’s decision to modify the ALJ’s claim constructions of the phrases “freezer compartment” and “disposed within the freezer compartment.”  On August 28, 2009, the Commission denied LG’s petition.  See our September 1 post for more details.  On October 9, 2009, ALJ Essex issued his initial determination on remand (“RID”), finding no violation of Section 337.  Specifically, in the RID, ALJ Essex determined (1) that the accused refrigerators and components thereof do not infringe the asserted claims of the ‘130 patent literally or under the doctrine of equivalents; (2) that claims 1, 2, 4, 6, and 9 of the ‘130 patent are invalid under 35 U.S.C. § 103 for obviousness, but that claim 8 of the ‘130 patent is not invalid under 35 U.S.C. § 103; and (3) a domestic industry exists.

On October 26, 2009, Whirlpool filed a petition for review of the RID, and LG filed a contingent petition for review of the RID.  On November 3, 2009, LG filed a response to Whirlpool’s petition for review.  On November 4, 2009, Whirlpool filed a response to LG’s contingent petition for review.  On November 6, 2009, the Commission Investigative Staff filed a combined response to both petitions.

After examining the record of the investigation, including the RID, the Commission decided to review the RID in its entirety.  In the December 14 notice, the parties are requested to brief their positions in response to the following questions: “Does the prior art of record show an ice discharge chute, as recited in claim 2 of the ‘130 patent, that is separate from and below the bottom opening of the ice storage bin?  Can this prior art be combined with the Hitachi reference, or any other prior art references that are currently in the record, to render claim 2 obvious?”

The parties’ briefs to the Commission are due by December 30, 2009, with reply submissions due by January 7, 2010.