By Eric Schweibenz
On May 9, 2011, ALJ Robert K. Rogers, Jr. issued Order No. 34 in Certain Flash Memory Chips and Products Containing Same (Inv. No. 337-TA-735).

According to the Order, Complainant Spansion, LLC (“Spansion”) filed a motion for reconsideration of Order No. 31 which denied Spansion’s motion for summary determination that it satisfied the technical prong of the domestic industry requirement for U.S. Patent No. 6,369,416.  Specifically, in Order No. 31, ALJ Rogers determined that Spansion violated Ground Rule 3.2 by failing to include a meet-and-confer certification or reference to any discussions among the parties concerning the subject matter of the motion.  See our May 5, 2011 post for more details.

In support of its motion for reconsideration, Spansion argued that it “satisfied the meet and confer requirements of Ground Rule 3.2, but inadvertently failed to include the Ground Rule 3.2 certification in the motion.”

ALJ Rogers rejected Spansion’s arguments and noted that “Spansion does not allege an intervening chance in controlling law, the availability of new evidence, or the need to correct a clear error of law or fact…[but] [i]nstead [ ] argues that Order No. 31 should be reconsidered to prevent manifest injustice.”  ALJ Rogers determined that “there has been no manifest injustice by the denial of Spansion’s summary determination motion for failure to comply with Ground Rule 3.2.”  ALJ Rogers further determined that “Spansion will need to prove the technical prong issue at trial” and “has not been precluded from arguing that it meets the technical prong of the domestic industry requirement.”  Accordingly, ALJ Rogers denied Spansion’s motion for reconsideration.