By Eric Schweibenz
On January 14, 2010, Eastman Kodak Company of Rochester, New York (“Kodak”) filed a complaint requesting that the ITC commence an investigation pursuant to Section 337.

The complaint alleges that the proposed respondents, Apple, Inc. of Cupertino, California (“Apple”), Research in Motion, Ltd. of Canada, and Research In Motion Corporation of Irving, Texas (collectively, “RIM”) unlawfully import into the United States, sell for importation, and/or sell within the United States after importation certain mobile telephones and wireless communication devices featuring digital cameras, and components thereof which allegedly infringe certain claims of U.S. Patent No. 6,292,218 (the ‘218 patent).

According to the complaint, the ‘218 patent “describes and claims an image capture and processing device with certain components for ‘previewing’ the scene to be captured.”

In the complaint, Kodak asserts that certain Apple products, including the iPhone 3G and iPhone 3GS (“Apple accused devices”) and certain RIM products, including the BlackBerry Tour; BlackBerry Storm 9530; BlackBerry Storm 2 9550; BlackBerry Bold 9000, 9700; BlackBerry Curve 8300, 8310, 8320, 8330, 8350i, 8520, 8530, 8900; BlackBerry Pearl 8100, 8110, 8120, 8130; and BlackBerry Pearl Flip 8220, 8230 (“RIM accused devices”) directly infringe, contribute to infringement and induce infringement of the ‘218 patent.

Kodak further alleges in the complaint that the Apple accused devices are manufactured abroad in China and are sold in the United States through its own retail and online stores, and “to cellular network carriers’ distribution channels and third-party resellers.”  Similarly, Kodak alleges that the RIM accused devises are manufactured abroad in Mexico and sold in the United States through “wireless communication carriers” and “third-party distribution channels, including resellers.”

With respect to related litigation, Kodak identifies in the complaint a number of district court actions and a Section 337 investigation (Inv. No. 337-TA-663) regarding the ‘218 patent that have resulted in settlement agreements or are otherwise pending.  In this respect, Kodak asserts in the complaint that the 663 Investigation resulted in an Initial Determination of violation issued by ALJ Carl C. Charneski on December 17, 2009.

Regarding the domestic industry requirement, Kodak asserts that “[a]ll of Kodak’s digital cameras embody the invention of at least independent claim 15 of the ‘218 patent” and that “[a]lthough Kodak does not presently manufacture its digital cameras in the United States, Kodak employees in the United States have continuously developed advanced technologies to support the digital cameras that incorporate the inventions claimed in the ‘218 patent.”   Kodak also alleges that it “has invested significant amounts of capital in the United States in licensing the ‘218 patent.”  Further, Kodak points out that in his “Initial Determination in the 663 Investigation, ALJ Charneski found that Kodak satisfied the domestic industry requirement for the ‘218 patent.”

With respect to potential remedy, Kodak requests that the Commission issue permanent exclusion orders and permanent cease and desist orders directed to Apple and RIM.