By Eric Schweibenz
On September 24, 2010, the International Trade Commission issued a notice determining to review in part an Initial Determination (“ID”) issued by ALJ Carl C. Charneski on July 16, 2010 finding no violation of Section 337 in Certain Machine Vision Software, Machine Vision Systems, and Products Containing Same (Inv. No. 337-TA-680).

By way of background, the Complainants in this investigation are Cognex Corporation and Cognex Technology & Investment Corporation (collectively, “Cognex”).  The Respondents are MVTec Software GmbH and MVTec LLC, Omron Corporation, Resolution Technology, Inc., Visics Corp., Daiichi Jitsugyo Viswill Co., Ltd., and Daiichi Jitsugyo (America), Inc. (collectively, “Respondents”).  In the ID, ALJ Charneski determined that:  (1) the Respondents’ accused products do not infringe any asserted claim of U.S. Patent Nos. 7,016,539 (the ‘539 patent) and 7,065,262 (the ‘262 patent); (2) certain claims of the ‘262 patent are invalid due to anticipation under 35 U.S.C. § 102; and (3) all asserted claims of both patents are invalid for failure to claim patent-eligible subject matter under 35 U.S.C. § 101.  See our August 26, 2010 post for more details.

According to the September 24 notice, the parties each filed petitions for review of the ID on August 2, 2010.  Each party filed a response to the other parties’ petitions on August 10, 2010.

After examining the record of the investigation, including the ID, the petitions for review, and the responses to the petitions for review, the Commission determined to review the ID in part.  In particular, the Commission determined to review:  (1) relating to the ’539 patent, ALJ Charneski’s construction of the claim terms “test,” “match score surface,” and “gradient direction,” all of his infringement findings except for the claim steps containing the limitations “locating local maxima” and “comparing the magnitude of each local maxima,” and his invalidity and domestic industry findings; (2) the ALJ’s finding that the ‘539 and ‘262 patents are invalid for failure to claim patent-eligible subject matter; and (3) the ALJ’s findings concerning anticipation of certain claims of the ‘262 patent.  The Commission determined not to review the remainder of the ID.

The notice states that the parties are requested to submit briefing limited to the following issue: “How would adopting complainants’ proposed construction for the claim terms ‘test,’ ‘match score surface,’ and ‘gradient direction’ relating to the ‘539 patent affect the ID’s infringement, domestic industry, and invalidity findings.”  Written submissions are due by October 8, 2010, with reply submissions due by October 15, 2010.