By Eric Schweibenz
On May 30, 2014, ALJ Thomas B. Pender issued Order No. 5 in Certain Earpiece Devices Having Positioning And Retaining Structure and Components Thereof (Inv. No. 337-TA-912).

By way of background, the investigation is based on a February 26, 2014 complaint filed by Bose Corp. (“Bose”) alleging violation of Section 337 by Monster, Inc., Monster, LLC, and Monster Technology International, Ltd. (collectively, “Monster”) in the importation into the U.S. and sale of certain earpiece devices having positioning and retaining structure and components thereof that infringe one or more claims of U.S. Patent No. 8,311,253.  See our February 27, 2014 and March 31, 2014 posts for more details on the complaint and Notice of Investigation, respectively. 

In the Order, ALJ Pender explained that during the May 12, 2014 case management conference, Bose argued against the need for a Markman hearing in this investigation and Monster made arguments in support of holding a Markman hearing.  Specifically, Bose asserted that a Markman hearing was unnecessary in view of the straightforward nature of the technology at issue in this investigation and the fact that only two claims from one patent are in dispute.  On the other hand, Monster argued that a Markman hearing would be beneficial as it would promote efficiency in the discovery process, streamline the issues presented for summary determination, and ultimately limit the issues in dispute at the evidentiary hearing.

After considering the parties’ arguments, ALJ Pender decided that a Markman hearing in this matter would be beneficial.  More particularly, ALJ Pender rejected Bose’s arguments and noted that “[e]arly resolution of claim construction issues in this investigation will undoubtedly conserve party resources as there will be no need to argue claim construction in the alternative, as well as produce a more focused hearing and post-hearing briefing.”  Accordingly, ALJ Pender provided a schedule for, inter alia, claim construction briefing and confirmed that a Markman hearing will take place in this investigation on July 16-17, 2014.