By Eric Schweibenz
On April 9, 2013, the International Trade Commission (the “Commission”) issued a notice in Certain Wiper Blades (Inv. No. 337-TA-816).  In the notice, the Commission reversed two of Chief ALJ Charles E. Bullock’s Initial Determinations (“ID”). 

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.

As explained in our November 2, 2012 post, the Commission determined to review Order Nos. 51 and 52 and claim constructions as necessary.  We now provide the results of this review.

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 were invalid as indefinite under § 112.  See our October 5, 2012 post for more details. 

According to the notice, the Commission determined that the Respondents “have not provided clear and convincing evidence that any of the claim terms at issue are invalid as indefinite under 35 U.S.C. § 112(b).”  The Commission based this conclusion on differently construing claim terms that were found indefinite by the ALJ, including the terms “securing means,” “means for securing,” “considerably shallower,” “where Fwf is an actual contact force exerted on the wiper blade by the wiper arm (18) in condition when it is pressed against its window,” “wiper strip having a center section and two end sections, said contact force of said wiper strip being greater in said center section than at least one of said end two sections,” and “a concave curvature that is sharper than the sharpest curvature of a spherically curved window in a region of a wiping field that can be swept across by said wiper blade.”  As such, the Commission reversed the ALJ’s summary determination of invalidity.

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.

According to the notice, the Commission also reversed the ALJ’s finding of noninfringement based on the legal requirement of a disclaimer.  Specifically, the ALJ found that the specifications “disclaimed” the use of any brackets to hold the wiper blades, but the Commission noted that criticism is not sufficient to rise to the level of clear disavowal, and the statements pointed to in the asserted patents “are insufficient here to provide the clear disavowal required to imbue the term ‘support element’ with a meaning at odds with, and narrower than, that term’s ordinary meaning.”  Therefore, construing “support element” to have its plain and ordinary meaning necessitated reversing the ALJ’s ID of no infringement.