By Eric Schweibenz
On May 23, 2013, the International Trade Commission (“the Commission”) issued a notice determining not to review the Remand Initial Determination (“RID”) in Certain Gaming and Entertainment Consoles, Related Software, and Components Thereof (Inv. No. 337-TA-752).

By way of background, the investigation was instituted on December 23, 2010 based on a complainant filed by Motorola Mobility, Inc. and General Instrument Corporation (collectively “Motorola”) against Respondent Microsoft Corporation (“Microsoft”).  Motorola alleged a violation of Section 337 in the importations into the U.S., the sale for importation, and the sale within the U.S. after importation of certain gaming and entertainment consoles, related software, and components thereof that infringe one or more claims of U.S. Patent Nos. 6,069,896 (the ‘896 patent); 7,162,094 (the ‘094 patent); 6,980,596 (the ‘596 patent); 5,357,571 (the ‘571 patent); and 5,319,712 (the ‘712 patent).  See our November 24, 2010 post for more details on Motorola’s complaint.  On April 23, 2012, ALJ David P. Shaw issued his final Initial Determination (“ID”), finding a violation of Section 337 by Microsoft of the assert claims of the ‘896, ‘094, ‘596, and ‘571 patents.  See our May 24, 2012 post for more details on the public version of the ID.  The Commission determined to review the ID in its entirety and remanded to the investigation back to ALJ Shaw to apply recent ITC case law.  See our July 3, 2012 post for more details.  In the months following the Commissions remand determination, ALJ Shaw granted two separate motions by Motorola, which terminated the investigation as to the ‘712, ‘571, ‘596, and ‘094 patents.  On March 22, 2013, ALJ Shaw issued his RID, which found no violation of Section 337 with respect to the asserted claims of the only remain patent, the ‘896 patent.  See our April 5, 2013 post for more details regarding the RID. 

Following a review of the parties’ petitions for review and responses, the Commission determined not to review the RID.  The Commission affirmed ALJ Shaw’s findings that:  (1) Motorola waived its indirect infringement argument, (2) Motorola failed to prove indirect infringement on the merits, and (3) Motorola failed to prove indirect infringement on the merits during the remand proceeding.  Accordingly, the Commission held that there is no violation of Section 337 with respect to the ‘896 patent and terminated the investigation.