By Eric Schweibenz
On September 24, 2010, the International Trade Commission (the “Commission”) issued a notice determining to review a portion of ALJ Robert K. Rogers, Jr.’s July 29, 2010 Initial Determination (“ID”) finding no violation of Section 337 in Certain Bulk Welding Wire Containers and Components Thereof and Welding Wire (Inv. No. 337-TA-686).  On review, the Commission affirmed ALJ Rogers’ finding of no violation of Section 337 and terminated the investigation.

By way of background, the Complainants in this investigation are The Lincoln Electric Company and Lincoln Global, Inc. (cumulatively, “Lincoln”).  The Respondents are The ESAB Group, Inc. (“ESAB”) and Sidergas SpA (“Sidergas”).   On July 29, 2010, ALJ Rogers issued the ID finding no violation of Section 337 by reason of infringement of the asserted claims of U.S. Patent No. 6,708,864 (the ‘864 patent).  In particular, the ID held that claim 3 of the ‘864 patent was invalid, and that none of the asserted claims were infringed by Respondents.  See our September 20, 2010 post for more details.

According to the September 24 notice, Lincoln, ESAB, and Sidergas each filed petitions for review of the ID on August 11, 2010.

After examining the record of the investigation, including the ID, and the submissions of the parties, the Commission affirmed ALJ Rogers’ determination that there was no infringement of the asserted claims literally or under the doctrine of equivalents.  Although the Commission determined to review the following four issues, it took no position on them: (1) the claim construction of the terms “substantially lying in a single plane” recited in independent claim 3 and “substantially in one plane” recited in independent claims 6 and 12; (2) the priority date of the asserted claims; (3) invalidity of claim 3 under 35 U.S.C. § 102(b); and (4) validity of claims 4, 6, 12, and 13 under 35 U.S.C. § 102(b).