By Eric Schweibenz
On October 20, 2010, the International Trade Commission issued a notice determining that Chief ALJ Paul J. Luckern’s June 22, 2010 Initial Determination on claim construction (“ID”) should be issued in the form of an order rather than an initial determination in Certain Mobile Telephones and Wireless Communication Devices Featuring Digital Cameras, and Components Thereof (Inv. No. 337-TA-703).

By way of background, the Complainant in this investigation is Eastman Kodak Company and the Respondents are Research In Motion, Ltd., Research In Motion Corporation, and Apple Inc. (collectively, “Respondents”).  The Commission instituted the investigation on February 17, 2010.  On April 26, 2010, ALJ Luckern issued an order granting Respondents’ motion requesting a Markman hearing, and a Markman hearing was conducted on May 24–25, 2010.  The ALJ issued the ID construing claim terms on June 22, 2010.  See our July 21, 2010 post for more details.  On July 22, 2010, the ITC issued a notice determining to review the ID, and more particularly the legal authority for addressing the issue of claim construction as a matter for summary determination and treating the claim construction ruling as an initial determination under the Commission’s rules of practice and procedure.  See our July 27, 2010 post for more details.

According to the October 20 notice, the parties each filed submissions in response to the ITC notice on August 5 and August 16, 2010.

In the October 20 notice, the ITC determined that:
Commission rule 210.42 does not include claim construction in the list of issues that must be decided in the form of an initial determination.  Nor is claim construction properly the subject of a motion for summary determination under Commission rule 210.18 since claim construction, standing alone, is not an “issue” or “any part of an issue” within the meaning of that rule.  While the Commission finds that the rules are unambiguous, to the extent interpretation is required, the Commission determines in its discretion and in the interest of the expeditious conclusion of section 337 investigations that a ruling on claim construction is properly issued in the form of an order.