By Eric Schweibenz
On October 1, 2010, Motiva, LLC of Dublin, Ohio (“Motiva”) filed a complaint requesting that the ITC commence an investigation pursuant to Section 337.

The complaint alleges that Nintendo Co., Ltd. of Japan and Nintendo of America, Inc. of Redmond, Washington (“NOA”) (collectively, “Nintendo”) unlawfully import into the U.S., sell for importation, and sell within the U.S. after importation certain video game systems and controllers that infringe U.S. Patent Nos. 7,292,151 (the ‘151 patent) and 7,492,268 (the ‘268 patent) (collectively, the “asserted patents”).

According to the complaint, the asserted patents generally relate to a human movement measurement system.  In particular, the asserted patents cover systems and controllers for tracking a user’s position, orientation, and movement in three dimensions.  The systems include a wireless hand-held and/or body-worn controller and a base station that processes information from the controller and sends feedback signals back to the controller.

In the complaint, Motiva alleges that Nintendo imports and sells products that infringe the asserted patents.  In particular, the complaint cites Nintendo’s Wii Console, Wii Remote, Wii Nunchuk, and Wii MotionPlus devices as infringing articles.

Regarding domestic industry, Motiva states that the inventors of the asserted patents have spent a considerable amount of time on:  (1) the engineering, research, design and development, and building of the proof of concept and demonstration prototypes for their invention; (2) development, drafting, revision, and prosecution of the patent applications that issued as the asserted patents and related applications; (3) meetings with potential investors to bring their inventions to market, including developing business plans, preparing presentations and demonstrating the prototype; and (4) litigating the ‘151 patent against Nintendo.  Motiva also states that it has created prototype products that practice at least one claim of each of the asserted patents and, accordingly, it has satisfied the technical prong of the domestic industry requirement.

As to related litigation, Motiva states that on November 10, 2008, Motiva filed suit against Nintendo for infringement of the ‘151 patent in the U.S. District Court for the Eastern District of Texas.  On December 17, 2009, the Federal Circuit issued a writ of mandamus transferring the case to the Western District of Washington.  The case was docketed in the Western District of Washington on March 3, 2010.  Shortly thereafter, Nintendo filed a request with the U.S. Patent and Trademark Office (“PTO”) for inter partes reexamination of the ‘151 patent.  Pursuant to Nintendo’s request, the PTO ordered inter partes reexamination of the ‘151 patent on June 4, 2010.  On June 11, 2010, the district court issued an order staying the case pending reexamination of the ‘151 patent and exhaustion of all appeals.

With respect to potential remedy, Motiva requests that the Commission issue a permanent limited exclusion order and a permanent cease-and-desist order directed at NOA.