By Eric Schweibenz
On September 4, 2013, the International Trade Commission (the “Commission”) issued a notice determining to review in its entirety the Initial Determination (“ID”) issued by ALJ David P. Shaw on June 28, 2013 finding no violation of Section 337 in Certain Wireless Devices with 3G Capabilities and Components Thereof (Inv. No. 337-TA-800).

By way of background, this investigation is based on a July 26, 2011 complaint filed on behalf of InterDigital Communications, LLC, InterDigital Technology Corporation, and IPR Licensing (collectively, “InterDigital”) alleging violation of Section 337 by Respondents Huawei Technologies Co., Ltd., FutureWei Technologies, Inc. d/b/a Huawei Technologies (USA), ZTE Corp., ZTE (USA) Inc., and Nokia (collectively, “Respondents”) in the importation into the U.S. and sale of certain wireless devices with 3G capabilities and components thereof that infringe one or more claims of U.S. Patent Nos. 7,349,540; 7,502,406; 7,536,013; 7,616,970 (the ‘970 patent); 7,706,332; 7,706,830; and 7,970,127.  See our July 28, 2011 post for more details.

As summarized in our July 2, 2013 post, ALJ Shaw issued an ID finding no violation of Section 337 based on a finding that the accused products do not infringe some claims, and although some claims in the ‘970 patent were found to be infringed, these claims were determined to be invalid.

According to the September 4 notice, the parties filed petitions for review of the ID.

After examining the record of the investigation, including the ID and the parties’ submissions, the Commission determined to review the final ID in its entirety.  The notice states that the parties are requested to brief their positions on the issues under review, and that the Commission is particularly interested in responses to the question posed in the notice related to whether establishing a domestic industry based on licensing requires proof of “articles protected by the patent.”  However, the Commission stated it is not interested in receiving written submissions addressing remedy, the public interest, or bonding at this time.

Written submissions are due by September 27, 2013, with reply submissions due by October 4, 2013.