By Eric Schweibenz
Further to our February 24, 2010 post, on March 8, 2010, Chief ALJ Paul J. Luckern issued the public version of the Final Initial and Recommended Determinations (“ID”) (dated February 23, 2010) in Certain Adjustable Keyboard Support Systems and Components Thereof (Inv. No. 337-TA-670).

By way of background, the Complainant in this investigation is Humanscale Corporation and the Respondents are CompX International, Inc. and Waterloo Furniture Corporation Ltd. d/b/a CompX Waterloo.

In the ID, ALJ Luckern found a violation of Section 337 in connection with the importation into the U.S., sale for importation, and sale within the U.S. after importation of certain adjustable keyboard support systems and components thereof.  The ID noted that the accused products met all limitations of both asserted claims 7 and 34 of U.S. Patent No. 5,292,097 (the ‘097 patent), but only claim 34 was not invalid.   ALJ Luckern also determined that Respondents had not established any intervening rights and a domestic industry exists with respect to the ‘097 patent.

The asserted patent relates to work surface support mechanisms adapted to be affixed to a base, one application of which is to support keyboards.

Claim Construction

ALJ Luckern construed nine terms from claim 7 of the ‘097 patent.

  • First, the claim terms “support means” and “locking means” were construed to overcome their statutory presumption of a “means-plus-function” element under 35 U.S.C. §112 ¶ 6, because, among other reasons, claim 7 recited “definite structures in such detail that said claim can not be interpreted as a means-plus-function claim.”

  • Second, the claim term “at least partially below the fixed base” was construed to mean “at least partially below the level of, but not necessarily underneath or beneath, the fixed base.” 

  • Third, the claim term “"fixed base" was construed to mean “the structure to which the claimed support means is adapted to be attached.”

  • Fourth, the claim term “displaceable longitudinally” was construed to mean “capable of movement in the direction of the line connecting the location of the pivot to the location of the pivot on the other end of the link element.”

  • Fifth, the term “pivotally fixed” connection was construed to mean “capable of rotational movement about one axis and not capable of other movement.”

  • Sixth, the term “pivotally mounted” connections was construed to mean “capable of rotational movement about an axis, but not necessarily restricted from other movement.”

  • Seventh, the term “pivotal connection” was construed to mean “coincident with the location of the pivotal axis, where the pivot pin is located.”

  • Eighth, the term “throughout such movement the attitude of said support platform remains substantially constant” was construed to mean “when moving between the first and second positions, the angle between the support platform and a reference, such as the horizontal plane, the plane of a tabletop, or the horizon, stays substantially the same.”

  • Ninth, the terms “supported on” and “provided on” were construed to mean “integral with or attached to.”

ALJ Luckern construed one term from claim 34 of the ‘097 patent.

  • The term “frictionally interengagable” was construed to mean “capable of locking engagement by application of only a frictional force sufficient to maintain a locked position during normal use.”


The ID organized the accused products into three categories: (1) rear wedge brake products, in which the wedge lock is located at the fixed base side of the assembly; (2) front wedge-lock products, in which the wedge lock is located at the support platform side of the assembly; and (3)  brake-shoe products.  Based on the above claim constructions, ALJ Luckern determined that rear and front wedge type products did not meet all limitations of claim 7 of the ‘097 patent (either literally or through the doctrine of equivalents).  On the other hand, ALJ Luckern found that the brake-shoe products practice each element of claim 7.  Since claim 34 depends from claim 7, only the brake-shoe products required analysis with respect to infringement of claim 34, and ALJ Luckern found those products infringed claim 34.


As a threshold issue, ALJ Luckern first determined the effective filing dates of the asserted claims, since the underlying application was a continuation-in-part.  ALJ Luckern found that the Complainant “satisfied its burden of producing evidence that claim 7 of the '097 patent is entitled to the benefit of an effective filing date of October 31, 1990, the filing date of the earlier '448 parent application to which the '097 patent claims priority,” but that Complainant did not satisfy its burden regarding claim 34 of the ‘097 patent which will therefore have “an effective filing date of July 1, 1992, the filing date of the continuation-in-part application that led to the '097 patent.”

The ID proceeded to hold that neither claim 7 nor claim 34 were anticipated by the Kompauer reference under 35 U.S.C. § 102.  With regard to 35 U.S.C. § 103, however, ALJ Luckern held “that the combination of Kompauer and Adam does render claim 7 of the '097 patent obvious.”  Claim 7 was similarly held obvious under 35 U.S.C. § 103 through a combination of Kompauer and Holtz, or a combination of Kompauer and Hood.   ALJ Luckern found that secondary considerations did not exhibit a sufficient nexus with claim 7 of the ‘097 patent, and therefore did not support patentability.  As to claim 34 of the ‘097, the ID found this claim not invalid under 35 U.S.C. § 103 with regard to the prior art asserted by Respondents.

Intervening Rights

Respondents argued that no injunction should issue under the doctrine of intervening rights because the scope of claim 34 changed during reexamination, and the accused products have been sold without significant change since prior to reexamination.  However, ALJ Luckern found that Respondents had “not established, by clear and convincing evidence, that products substantially identical to the accused products were made, purchased, used, or imported into the United States prior to the issuance of the reexamination certificate of the '097 patent.”

Domestic Industry

Based on ALJ Luckern’s examination of Complainant’s KM product, he found “that the KM product meets the limitations of both claim 7 and claim 34, and therefore that complainant has met its burden to prove the technical prong of domestic industry.”  With respect to the economic prong,  Complainant previously moved for summary determination that the economic prong of the domestic industry had been satisfied.  Order No. 27 granted this motion, and Respondents petitioned to the Commission for review of that initial determination.  That petition for review is currently before the Commission.

Remedy and Bond

With respect to remedy, ALJ Luckern recommended that if the Commission finds a violation of Section 337, it should issue a limited exclusion order directed to “infringing articles whether they are private label products or brand-name products….[S]aid order should not be limited to specifically-identified products, but rather extend to all infringing products.”  Additionally, ALJ Luckern recommended a certification provision to facilitate Custom’s enforcement of any recommended exclusion order.  Finally, ALJ Luckern recommended, if necessary, “any bond be set at 100 percent of the entered value of the infringing products imported, during the Presidential period, should a violation be found.”