On May 19, 2009, ALJ Theodore R. Essex issued the public version of Order No. 21 (dated May 11, 2009) in Certain Automotive Multimedia Display and Navigation Systems, Components Thereof, and Products Containing Same (Inv. No. 337-TA-657).  In the Order, ALJ Essex granted complainant Honeywell International Inc.’s (“Honeywell”) motion to compel respondents Pioneer Corp. and Pioneer Electronics (USA), Inc. (collectively, “Pioneer”) to produce source code for their OEM products made for Honda.

According to the order, Honeywell argued that the source code was discoverable because it controls various functions within the accused products and is relevant to whether certain claim elements were met.  Pioneer argued that since the source code was for OEM products made for non-party Honda, and the products of non-parties could not be excluded by an ITC limited exclusion order under Kyocera Wireless Corp. v. Int’l Trade Comm’n, 545 F.3d 1340 (Fed. Cir. 2008), the source code was irrelevant.

ALJ Essex granted Honeywell’s motion to compel, finding that “Pioneer confuses the scope of investigation with the scope of relief available in a Section 337 investigation.”  According to the Order, the Kyocera Wireless decision only limited the relief available under an ITC limited exclusion order – it did not change the fact that it is a violation of Section 337 to “import into the United States, sell for importation, or sell within the United States after importation any product that infringes a valid and enforceable United States patent.”  Thus, the OEM products made for Honda were within the scope of the investigation even though they might not ultimately fall within the scope of a limited exclusion order.  Accordingly, ALJ Essex granted Honeywell’s motion to compel production of the source code.