02
Apr
By Eric Schweibenz
On April 1, 2010, Microsoft Corporation of Redmond, Washington (“Microsoft”) filed a complaint requesting that the ITC commence an investigation pursuant to Section 337.

The complaint alleges that Datel Design and Development Inc. of Clearwater, Florida and Datel Design and Development Ltd. of the United Kingdom (collectively, “Datel”) unlawfully import into the United States, sell for importation, and/or sell within the United States after importation certain game controllers that infringe certain claims of U.S. Patent Nos. D521,015 (the ‘015 patent), D522, 011 (the ‘011 patent), D547,763 (the ‘763 patent), D581,422 (the ‘422 patent), D563,480 (the ‘480 patent), and D565,668 (the ‘668 patent) (collectively, the “Microsoft Patents”).

According to the complaint, the “Microsoft Patents disclose and claim ornamental designs for portions of a game controller” that are “embodied in Microsoft’s Xbox 360 game system.”

In the Complaint, Microsoft alleges that Datel “advertises itself as creator of the ‘world’s best-selling video game cheat products’ and a source for game accessories for all major video game console platforms, including the Xbox 360.”  Microsoft further alleges that Datel “is a vendor and supplier of game controllers, including the TurboFire and WildFire game controllers that infringe Microsoft’s patented designs.”

Regarding related litigation, Microsoft asserts that “[c]oncurrent with the filing of this complaint, Microsoft is filing a complaint against the proposed respondents in the U.S. District Court for the Western District of Washington alleging infringement of the ‘015, ‘011, ‘763, ‘422, ‘480, and ‘668 patents.”

With respect to the domestic industry requirement, Microsoft asserts that the “Xbox 360 game pad satisfies the technical prong of domestic industry by incorporating each of the designs protected by the Microsoft Patents.”  Regarding the economic prong, Microsoft asserts that           “[a]lthough the Xbox 360 gamepad is not manufactured in the United States, Microsoft has made and continues to make substantial investments in the United States for activities relating to the Xbox 360 game system including the Xbox 360 controllers.”

As to potential remedy, Micosoft requests that the Commission issue a permanent exclusion order, and permanent cease and desist order directed to Datel.