On August 3, 2011, ALJ Robert K. Rogers, Jr. issued Order No. 12 in Certain Muzzle-Loading Firearms and Components Thereof (Inv. No. 337-TA-777).  The Order denied a motion filed by certain Respondents to strike Complainants’ allegedly late-disclosed claim constructions.

By way of background, this investigation is based on a May 11, 2011 complaint filed by Thompson/Center Arms Co., Inc. and Smith & Wesson Corp. (collectively, “Complainants”) alleging violation of Section 337 in the importation into the U.S. and sale of certain muzzle-loading firearms and components thereof that allegedly infringe U.S. Patent Nos. 7,908,781; 7,814,694; 7,140,138; 6,604,311; 5,782,030; and 5,639,981.  The Respondents are Dikar Sociedad Cooperativa Limitada, Bergara Barrels Europe, Blackpowder Products Inc., Connecticut Valley Arms, Bergara Barrels North America, Ardesa Firearms, and Traditional Sporting Goods, Inc. d/b/a Traditions Sporting Firearms (the latter two, collectively, “TSG Respondents”).  See our June 16, 2011 post for more details.

According to the Order, the TSG Respondents argued that in Complainants’ motion for temporary relief, which was filed with the Complaint, no claim constructions were offered, except for the assertion that the claims have “precise, well-defined meaning in the art.”  The TSG Respondents assert they were prejudiced because only after submitting their response to the temporary relief motion, and serving their initial expert reports, did Complainants provide claim construction arguments through Complainants expert report.  For relief, the TSG Respondents requested to preclude Complainants and their expert from relying upon the allegedly new claim construction positions during the temporary phase of this investigation.

Complainants, supported by the Commission Investigative Staff, opposed the TSG Respondents’ motion on the grounds that the constructions in Complainants’ expert report simply represented the ordinary meaning of the claim terms, and such elaboration was necessary only due to Respondents’ “attempt to contort the plain meaning of the claim terms” in their opposition papers.

ALJ Rogers determined not to strike Complainants’ constructions, at least in part because the condensed procedural relief phase of this investigation did not include deadlines for the exchange of claim construction positions or the filing of joint claim construction submissions.  ALJ Rogers also denied Respondents’ motion because he further determined that the TSG Respondents did not suffer prejudice, in view of the fact that (1) Respondents offered their own claim constructions in their opposition brief, (2) through a rebuttal expert report, Respondents’  own expert had an opportunity to respond to Complainants’ expert’s claim constructions; and (3) Respondents will be able to cross-examine Complainants’ expert at the temporary relief hearing regarding his claim constructions.