By Eric Schweibenz
On December 16, 2013, the Federal Circuit issued its non-precedential opinion in Cognex Corp. v. ITC (2011-1098).  This was an appeal by Cognex Corporation and Cognex Technology & Investment Corporation (collectively, “Cognex”) from the International Trade Commission’s (the “Commission”) final determination in Certain Machine Vision Software, Machine Vision Systems, And Products Containing Same (Inv. No. 337-TA-680).

In the opinion, the Federal Circuit affirmed the Commission’s final determination of no violation of Section 337 by MVTec Software GmbH and MVTec, LLC (collectively, “MVTec”) with respect to U.S. Patent Nos. 7,016,539 (the ‘539 patent) and 7,065,262 (the ‘262 patent).  In particular, the Federal Circuit affirmed the Commission’s determination of non-infringement of the asserted claims of the ‘539 patent.  The asserted claims included one independent claim (claim 1), from which the remaining claims were all directly or indirectly dependent.

According to the opinion, the Commission found that the accused products did not satisfy five of the seven limitations of claim 1 of the ‘539 patent.  Additionally, the Commission found that all of the asserted claims of the ‘539 patent were invalid under 35 U.S.C. § 101 for failing to claim patent eligible subject matter. 

On review, the Federal Circuit affirmed the Commission’s non-infringement findings with respect to claim limitations 1 and 6 of claim 1, and therefore did not reach the other claim limitations on appeal.  Specifically, the Federal Circuit found that Cognex had waived any argument with respect to the Commission’s construction of the term “accept threshold” contained in claim limitation 1.  The Federal Circuit reached this conclusion because Cognex had failed to dispute the construction in its opening brief, and, in its reply brief, failed to point out where it had presented the issue in its opening brief.  The Federal Circuit also affirmed the Commission’s claim construction with respect to the term “probe” contained in claim limitation 6. 

In view of the above, the Federal Circuit affirmed the Commission’s non-infringement decision because it was supported by substantial evidence.  Additionally, because the Commission’s finding of non-infringement of the ‘539 patent was enough to support its termination of the Section 337 investigation, the Federal Circuit did not address the validity of the ‘539 patent.