By Eric Schweibenz
On June 24, 2010, ALJ Robert K. Rogers, Jr. issued the public version of Order No. 23 (dated April 16, 2010) in Certain Printing and Imaging Devices and Components Thereof (Inv. No. 337-TA-690) denying Respondents Oki Data Corporation and Oki Data Americas, Inc.’s (collectively “Oki Data”) motion for summary determination of non-infringement as to certain accused products.

In support of its motion, Oki Data asserted that Complainants Ricoh Company, Ltd., Ricoh Americas Corporation, and Ricoh Electronics, Inc. (collectively, “Ricoh”) identified over 90 accused Oki Data products in response to an interrogatory, many of which were not addressed by Ricoh’s experts on infringement via report or deposition.  Oki Data thus sought summary determination of non-infringement regarding the accused products not addressed by Ricoh’s experts, or alternatively an order precluding Ricoh’s experts from testifying at the evidentiary hearing about such products.  In opposition, Ricoh asserted that Oki Data mischaracterized the facts and sought summary determination regarding non-accused products.  Ricoh stated that the complete list of accused products is found in the parties’ Joint Statement of Contested Issues, and argued that product numbers are largely irrelevant to this investigation because Oki Data frequently changes model names and numbers without altering functionality.  According to Ricoh, the remedy it requests was tied to the functionality that infringed the asserted patents, not necessarily to specific model numbers.  The Commission Investigative Staff supported the motion in part, arguing that Ricoh’s experts should be precluded from testifying at trial regarding any accused products not previously addressed in their reports or depositions, but pointing out that Ricoh may be able to demonstrate infringement without resorting to expert testimony.

In the Order, ALJ Rogers first noted the ITC’s long-standing practice of declining to limit exclusion orders to specific model numbers, which is meant to prevent the circumvention of an exclusion order by changing a product model number.  ALJ Rogers thus stated that “any remedy that issues in this investigation likely will not be limited by model number.”  As to the parties’ contentions, ALJ Rogers agreed with Ricoh and found that Oki Data is not entitled to summary determination because the products listed in its motion either (1) include one of the fuser rollers on which Ricoh’s expert’s infringement opinion is based, (2) are addressed in Ricoh’s experts’ infringement claim charts, (3) are identical to products analyzed in Ricoh’s expert’s report, or (4) are not accused by Ricoh.