On August 11, 2011, the International Trade Commission (the “Commission”) issued a notice determining to review in part an Initial Determination (“ID”) issued by ALJ Robert K. Rogers on June 10, 2011 finding a violation of Section 337 in Certain Inkjet Cartridges with Printheads and Components Thereof (Inv. No. 337-TA-723).

By way of background, and according to the notice, Complainants Hewlett-Packard Company and Hewlett-Packard Development Company, L.P. (collectively, “HP”) accused Respondents MicroJet Technology Co., Ltd. (“MicroJet”); Asia Pacific Microsystems, Inc. (“APM”); Mipo Technology Limited (“Mipo Tech”); Mipo Science & Technology Co., Ltd. (“Mipo”); Mextec d/b/a Mipo America Ltd. (“Mextec”); SinoTime Technologies, Inc. (“SinoTime”); and PTC Holdings Limited (“PTC”) of infringing certain claims of U.S. Patent Nos. 6,234,598; 6,309,053; 6,398,347; 6,481,817; 6,402,279; and 6,412,917 (the ’917 patent).  Respondents Mipo, Mipo Tech, SinoTime, and Mextec were subsequently terminated, and Respondent MicroJet defaulted.  HP withdrew allegations of infringement of the ‘917 patent.

In his June 10, 2011 ID, ALJ Rogers found a violation of Section 337 and determined that MicroJet and PTC directly infringed the remaining asserted patents and found APM liable for contributory infringement (but not direct or induced infringement).  ALJ Rogers further determined that the asserted patents were not invalid and that a domestic industry existed with respect to these remaining asserted patents.  See our August 12, 2011 post for more information.

According to the August 11 notice, on June 24, 2011, HP filed a contingent petition for review of the ID, and on June 27, 2011, APM and the Commission investigative attorney filed petitions for review of the ID.  On July 5, 2011, the parties filed responses to the various petitions and contingent petition for review.

After examining the record of the investigation, including the ID and the parties’ submissions, the Commission determined to review the ID’s findings that HP failed to establish by a preponderance of the evidence that Respondent APM induced infringement of the asserted patents. The Commission determined not to review any other issues in the ID.

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 question:

1.  Does the record evidence demonstrate that APM’s conduct meets the “specific intent” requirement for inducement in light of the ALJ’s finding that “APM certainly had knowledge of the asserted patents and the infringement at issue once it was served with HP’s Complaint [a]nd APM continued to sell its components to MicroJet even after receiving HP’s Complaint”?  ID at 91; RX-69C. See DSU Med. Corp. v. JMS Co., 471 F.3d 1293, 1305 (Fed. Cir. 2006).

Written submissions are due by August 25, 2011, with reply submissions due by September 1, 2011.