By Eric Schweibenz
On November 1, 2012, the International Trade Commission (the “Commission”) issued a notice in Certain Wiper Blades (Inv. No. 337-TA-816).  In the notice, the Commission determined to review two of Chief ALJ Charles E. Bullock’s Initial Determinations.  The first ID, issued as Order No. 51 on October 2, 2012, found that claims 1-6 and 8-10 of U.S. Patent No. 6,611,988 and all claims of U.S. Patent Nos. 6,553,607, 6,836,926 and 6,973,698 are invalid as indefinite under § 112.  See our October 5, 2012 post for more details.  The second ID, issued as Order No. 52 on October 25, 2012, found that Respondents Danyang UPC Auto Parts Co., Ltd., Pylon Manufacturing Corp., and Scan Top Enterprise Co., Ltd.’s accused products do not infringe the asserted claims of the ‘988 and ‘926 patents, or the asserted claims of U.S. Patent Nos. 6,944,905, 7,293,321 and 7,523,520.  See our October 29, 2012 post for more details.

By way of background, the investigation is based on a complaint filed by Robert Bosch LLC (“Bosch”) alleging violation of Section 337 in the importation and sale of certain “flat” or “beam-type” wiper blade devices that infringe one or more claims of the asserted patents.  See our October 27, 2011 post for more details.

According to the notice, the Commission determined to review Order Nos. 51 and 52.  By virtue of reviewing Order No. 51, the Commission is also reviewing the ALJ’s claim construction determinations regarding those claim terms found to be indefinite.  By virtue of reviewing Order No. 52, the Commission is also reviewing the ALJ’s construction of “support element” or “supporting element.”

The parties are requested to brief their positions on the following questions listed in the notice:

For Order No. 51:

1.  If the Commission were to determine that each of the claim terms in dispute is definite, the appropriate construction for each.

2.  Whether the term “stop (62, 63)” in claim 1 of the ‘607 patent refers to the stop on the wiper blade or the stop on the wiper arm.

3.  The effect, if any, on claim construction by virtue of the patents’ recitation in their claims of the numbering of components from the preferred embodiment (e.g., “stop (62, 63)”).

For Order No. 52:

1.  Whether the intrinsic record for each patent demonstrates clear disavowal of claim scope in view of the legal test set forth in, inter alia, Thorner v. Sony Computer Entertainment America, LLC, 669 F.3d 1362, 1366-67 (Fed. Cir. 2012).  The parties are to address not only the scope of disavowal adopted by the ALJ, but also the scope of disavowal urged in claim construction proceedings by the IA (“high profile bracket design”), on a patent-by-patent basis.

2.  Whether the subject matter of each patent claim (e.g., the attachment mechanism for a wiper blade to a wiper arm, as opposed to the blade itself) is pertinent for the clear disavowal test.

3.  Whether it is appropriate to construe the term “support element” to include limitations recited elsewhere in the asserted patent claims, such as “band-shaped-elongated,” “band-like,” “elongated,” “long-stretched out,” or “flat bar.”

4.  Whether there is a genuine issue of material fact as to whether the accused products that are the subject of Order No. 52 contain a “support element” that is “band-shaped-elongated,” “band-like” “elongated,” “long-stretched out,” or “flat bar,” regardless of whether those accused products use brackets.