By Eric Schweibenz
On August 30, 2012, the International Trade Commission (“the Commission”) issued a notice of its decision to review in part the initial determination (“ID”) finding a violation of section 337 in Certain Protective Cases and Components Thereof (Inv. No. 337-TA-780).

By way of background, Otter Products, LLC (“Otter”) filed its complaint in this investigation on May 25, 2011 alleging that Griffin Technology, Inc. (“Griffin”) and numerous other parties (terminated by settlement, consent order, etc. or found to be in default) unlawfully imported, sold for importation, and sold after importation certain protective cases and components thereof for cellular phones, mobile music players, and tablet computers that infringe various patents.  The Commission instituted this investigation on June 24, 2011.  See our June 27, 2011 post for more details.

As summarized in our July 18, 2012 post, ALJ Essex issued an ID finding that there has been a violation of Section 337 by the Defaulting Respondents in this investigation with respect to U.S. Patent Nos. D600,908; D617,784; D615,536; D617,785; D634,741; D636,386; and 7,933,122; and U.S. Trademark Registrations 3,788,534; 3,788,535; 3,623,789; and 3,795,187.  In the ID the ALJ notes without substantial discussion that, in view of undisputed evidence, each of the Defaulting Respondents satisfies the importation requirement and their accused products literally infringe the asserted patents and trademarks.  The ALJ also found that there has been a violation of Section 337 by Griffin with respect to the Griffin Survivor for the iPad 2 and the Griffin Explorer for the iPhone 4, but that the Griffin Survivor for iPod Touch does not literally infringe.

After reviewing the parties’ filings, the Commission determined to review the ALJ’s finding that the accused Griffin Survivor for iPod Touch does not literally infringe the asserted claims of U.S. Patent No. 7,933,122.  The Commission declined to review any other issues in the ID.

To summarize, the ID discussed the construction of the term “groove” at length, and in the end, it was given its plain and ordinary meaning of “a long, narrow cut or furrow,” in contrast to the broader meaning advocated by Otter that did not limit “groove” to any particular shape.   The Griffin Survivor for iPod Touch was found not to infringe because the alleged “groove” was of a shape other than long and narrow.

The parties are requested to brief their positions on three questions listed in the notice related to interpretation of “groove” and the relation of “groove” to other elements in the accused product and in U.S. Patent No. 7,933,122.  The notice also requests briefing on the ALJ’s recommendations on remedy and bonding.

Written submissions are due by September 14, 2012, with reply submissions due by September 21, 2012.