By Eric Schweibenz
On November 6, 2012, the International Trade Commission (the “Commission”) issued a notice in Certain Video Game Systems and Wireless Controllers and Components Thereof (337-TA-770).  In the notice, the Commission determined to review in part Chief ALJ Charles E. Bullock’s August 31, 2012 initial determination (“ID”), which found no violation of Section 337 by the Respondents in this investigation.

By way of background, this investigation was instituted on April 20, 2011 based on a complaint filed by Creative Kingdoms, LLC and New Kingdoms, LLC (collectively, “CK”) alleging a violation of Section 337 by Respondents Nintendo of America, Inc. and Nintendo Co., Ltd. (collectively, “Nintendo”) for the importation into the U.S. and sale of certain video game systems and wireless controllers and components thereof including Nintendo’s Wii wireless game system and controllers.  CK alleged that Nintendo violated Section 337 with respect to U.S. Patent Nos. 7,850,527 (the ‘527 patent), 7,500,917 (the ‘917 patent), and 7,896,742 (the ‘742 patent).

In the ID, ALJ Bullock determined that there is no violation of Section 337 by Nintendo in this investigation with respect to the patents-at-issue.  Specifically, ALJ Bullock determined that: (i) Nintendo did not infringe the ‘527 patent or the ‘917 patent, (ii) all of the asserted claims from the patents-at-issue are invalid, and (iii) the domestic industry requirement is not met with respect to the patents-at-issue.  See our October 12, 2012 post for more details.

According to the notice, the Commission determined to review the following issues:  (1) claim construction of the limitation “toy wand”; (2) non-infringement of the ‘917 patent; (3) infringement of the ‘742 patent; (4) validity of the ‘917 and ‘742 patents under the enablement requirement; (5) validity of the asserted claims of the ‘917 and ‘742 patents under the written description requirement; and (6) domestic industry requirement with respect to the ‘917 and ‘742 patents.

The notice indicates that the Commission has already altered the claim construction of “toy wand,” and in light of this construction (in a soon-to-be issued opinion), the Commission has remanded the case to ALJ Bullock to determine infringement, validity, and domestic industry of the ‘917 and ‘742 patents.  Briefing on the remanded and reviewed issues is postponed until the remand ID is issued.