By Eric Schweibenz
On January 5, 2010, the International Trade Commission (the “Commission”) issued a notice of final determination to review-in-part and affirm the initial determination of no violation of Section 337, and terminate the investigation in Certain Video Game Systems and Controllers (Inv. No. 337-TA-743).

By way of background, and according to the notice, Complainant Motiva, LLC accused Respondents Nintendo Co., Ltd. and Nintendo of America Inc. (collectively “Nintendo”) of infringing certain claims of U.S. Patent Nos. 7,292,151 (the ‘151 patent) and 7,492,268 (the ‘268 patent).  In his November 2, 2011 Initial Determination (“ID”), ALJ Rogers found no violation of Section 337.  Specifically, ALJ Rogers determined that the accused Nintendo products do not infringe (1) claims 16, 27-32, 44, 57, 68, and 84 of the ‘151 patent, and (2) claims 2, 4, 11, and 14 of the ‘268 patent.  ALJ Rogers also determined that an industry does not exist in the U.S. that exploits the ‘151 or ‘268 patents, as required by 19 U.S.C. § 1337(a)(2).  ALJ Rogers further determined that the claims of the ‘151 and ‘268 patents are neither invalid nor unenforceable due to inequitable conduct.  See our November 4, 2011 post for more details.

On November 15, 2011, Complainant Motiva and the Commission investigative attorney filed petitions for review of portions of the ID.  Respondent Nintendo filed a response to both petitions and the Commission Investigative Attorney filed a response to Motiva’s petition.

Having examined the record of this investigation, the Commission determined to deny the petitions for review and, upon its own initiative, further determined to review “(1) a statement in the ID connecting the relevant level of skill in the art to the skill of the inventors, and (2) the relevant time frame for considering whether a domestic industry exists or is in the process of being established.”  After issuing an opinion on those issues, the Commission determined not to review the remainder of the ID, thus affirming ALJ Rogers’ finding of no violation of Section 337 and terminating the investigation.