By Eric Schweibenz
On July 26, 2011, ALJ Theodore R. Essex issued Order No. 8 in Certain Game Devices, Components Thereof, and Products Containing the Same (Inv. No. 337-TA-757).

In the Order, ALJ Essex granted-in-part and denied-in-part a motion filed by Complainant Microsoft Corp. (“Microsoft”) to strike certain affirmative defenses asserted by Respondents Datel Design & Development, Inc., Datel Design & Development, Ltd., Datel Direct Ltd., Datel Holdings Ltd., and Datel Electronics Ltd. (collectively, “Datel”).

In support of its motion, Microsoft argued that certain of Datel’s affirmative defenses failed to satisfy the Commission’s rules because they were either unsupported by facts identified after a reasonable inquiry, or were not pled with as much specificity as possible.  In response to the motion, Datel dropped its affirmative defense of acquiescence, estoppel, laches, and waiver, but maintained its defenses of unenforceability (via inequitable conduct) (third defense) and patent misuse (sixth defense).  More particularly, in its response to Microsoft’s motion, Datel provided more details about its third and sixth defenses.

According to the Order, ALJ Essex determined that striking Datel’s third and sixth defenses in their entirety was not appropriate in light of the relatively early stage of the investigation.  In this regard, ALJ Essex determined that Datel had produced enough details about its third and sixth defenses in response to Microsoft’s motion to meet the ITC’s pleading requirements.  Accordingly, ALJ Essex ordered Datel to file an amended response to Microsoft’s complaint within seven days of the order.