By Eric Schweibenz
On May 26, 2011, the International Trade Commission (the “Commission”) issued a notice determining to review in part an Initial Determination (“ID”) issued by ALJ E. James Gildea on March 25, 2011 finding no violation of Section 337 in Certain Electronic Devices, Including Mobile Phones, Portable Music Players, and Computers (Inv. No. 337-TA-701).

By way of background, the Complainants in this investigation are Nokia Corporation and Nokia Inc (collectively, “Nokia”) and the Respondent is Apple Inc. (“Apple”).  In the ID, ALJ Gildea determined that no violation of Section 337 had occurred by Apple in the importation into the U.S., sale for importation, or sale within the U.S. after importation of certain electronic devices, including mobile phones, portable music players, or computers by reason of infringement of U.S. Patent Nos. 6,518,957 (the ‘957 patent), 6,714,091 (the ‘091 patent), 6,834,181 (the ‘181 patent), 6,895,256 (the ‘256 patent), or 6,924,789 (the ‘789 patent).  See our May 11, 2011 post for more details.

According to the May 26 notice, Nokia and the Commission Investigative Staff (“OUII”) each filed petitions for review of the ID on April 11, 2011.  That same day, Apple filed a contingent petition for review of the ID.  On April 19, 2011, Nokia and Apple filed responses to the various petitions and contingent petition for review.  OUII filed a combined response to Nokia’s petition for review and Apple’s contingent petition for review on April 22, 2011.

After examining the record of the investigation, including the ID and the parties’ submissions, the Commission determined to review the ID in part.  In particular, the Commission determined to review the ID’s findings related to the ‘181 and ‘256 patents.  The Commission determined not to review any issues related to the ‘957, ‘091, and ‘789 patents, and terminated those patents from the investigation.

The notice states that the parties are requested to submit briefing on the issues under review and on remedy, the public interest, and bonding.  The notice further states that the Commission is particularly interested in responses to the following questions:

(1) Does the claim term “multiple acoustic cavities each having an acoustic volume” recited in asserted claim 1 of the ‘181 patent require each “acoustic cavity” to possess any particular acoustic property?

(2) Assuming that the ‘181 patent does not require each “acoustic cavity” to possess any particular acoustic properties, does Marqvardsen (International Publication No. WO 00/38475) anticipate asserted claim 1?  See ID at 117.

(3) Do the accused products satisfy the “Integrated Mobile Terminal Processor” limitation recited in asserted claim 1 of the ‘256 patent under the ALJ’s construction of that limitation?  See Markman Order (Order No. 53) at 41-43.

Written submissions are due by June 9, 2011, with reply submissions due by June 16, 2011.