By Eric Schweibenz
On September 13, 2011, ALJ E. James Gildea issued the public version of Order No. 6 (dated August 26, 2011) in Certain GPS Navigation Products, Components Thereof, and Related Software (Inv. No. 337-TA-783).

By way of background, the Complainant in this investigation is Honeywell International Inc. (“Honeywell”) and the Respondents are Furuno Electric Co., Ltd. and Furuno U.S.A., Inc. (collectively, “Furuno”).

In the Order, ALJ Gildea ruled on Furuno’s request that the ALJ set two deadlines for the notice of prior art:  an initial deadline in August and a “final deadline” in October.  In support of their request, Furuno argued that they have insufficient time to search for relevant prior art, that they would prefer to search for prior art after claim construction positions have been disclosed, and that Honeywell has withheld necessary discovery on conception pending resolution of the parties’ claim construction positions. 

Honeywell opposed Furuno’s request arguing, among other things, that the procedural schedule set for this investigation is consistent with other investigations and that Honeywell provided the necessary conception dates for all four asserted patents.  Honeywell also argued that Furuno did not offer evidence that they have acted diligently in searching for prior art or otherwise establish good cause for amending the procedural schedule. 

According to the Order, ALJ Gildea noted that ITC actions are “extremely fast-paced proceedings” and Furuno has been on notice since at least June 6, 2011 that a complaint was filed against them “and are presumed to have been immediately and diligently searching for prior art and preparing their defenses.”  ALJ Gildea also noted that “the procedural schedule is carefully designed to have the parties formulate, disclose, and solidify their positions with respect to invalidity and claim construction early in the Investigation” and seeks to “prevent a shifting sands approach to the proceedings.”  Therefore, because a later notice of prior art would provide Furuno “with an unfair tactical advantage,” ALJ Gildea denied Furuno’s motion to set dual prior art notice deadlines.