On August 18, 2011, the International Trade Commission (the “Commission”) issued a notice determining to review in part an Initial Determination (“ID”) issued by former Chief ALJ Paul J. Luckern on June 17, 2011, finding a violation of Section 337 in Certain Biometric Scanning Devices, Components Thereof, Associated Software, and Products Containing the Same (Inv. No. 337-TA-720). 

By way of background, the Complainant in this investigation is Cross Match Technologies, Inc. (“Cross Match”) and the Respondents are Suprema, Inc. (“Suprema”) and Mentalix, Inc. (collectively, the “Respondents”).  In the ID, ALJ Luckern determined that a violation of Section 337 had occurred by Suprema through its infringement of one or more claims of U.S. Patent No. 5,900,993.  ALJ Luckern also found a violation of Section 337 by reason of infringement of claim 19 of U.S. Patent No. 7,203,344 (the ‘344 patent).  The ALJ found no violation of Section 337 with respect to U.S. Patent No. 6,483,932.  See our June 21, 2011 post for more details.

According to the August 18 notice, Cross Match, the Respondents, and the Commission Investigative Staff each filed a petition for review of the ID on July 5, 2011.  On July 13, 2011, each party filed a response to the other party’s opposing petition. 

 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 finding of a violation of Section 337 based on infringement of claim 19 of the ‘344 patent.  The Commission determined not to review the remainder of 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, with respect to violation, the parties are requested to submit briefing limited to the following issues:

(1)   Who infringes claim 19 of the ‘344 patent and what type of infringement has occurred?  Please consider direct, contributory, and induced infringement.

(2)   Is there is [sic] a sufficient nexus between the infringer’s unfair acts and importation to find a violation of section 337?  See, e.g., Dynamic Random Access Memories, Components Thereof and Products Containing Same, Inv. No. 337-TA-242, Comm’n Op. (Sept. 21, 1987); Certain Cardiac Pacemakers and Components Thereof, Inv. No. 337-TA-162, 1984 WL 273827, Order No. 37 (March 21, 1984).

Written submissions are due by August 30, 2011, with reply submissions due by September 8, 2011.