By Eric Schweibenz and John Presper
On September 7, 2016, the International Trade Commission (“the Commission”) issued a notice and order in Certain Wearable Activity Tracking Devices, Systems, and Components Thereof (Inv. No. 337-TA-973).  In the notice and order, the Commission determined to review-in-part and vacate-in-part the ALJ’s initial determination (“ID”) in Order No. 24 granting Respondents AliphCom d/b/a Jawbone and BodyMedia, Inc.’s (collectively, “Jawbone”) motion for summary determination that U.S. Patent Nos. 8,920,332 (“the ’332 patent”), 8,868,337 (“the ’337 patent”), and 9,089,760 (“the ’760 patent”) are directed to ineligible subject matter under 35 U.S.C. § 101.

By way of background, this investigation is based on a November 2, 2015 complaint filed by Fitbit, Inc. (“Fitbit”) alleging violation of section 337 in the importation into the U.S. and sale of certain wearable activity tracking devices, systems, and components thereof that infringe one or more claims of the ’332, ’377, and ’760 patents.  See our November 2, 2015 and December 3, 2015 posts for more details on the complaint and Notice of Investigation, respectively.  On August 9, 2016, ALJ Thomas B. Pender issued the public version of Order No. 24 granting Jawbone’s motion for summary determination of invalidity and terminating the investigation in its entirety.  See our August 18, 2016 post for more details on the ID.

According to the notice and order, the Commission determined to review the ID as to the ’332 and ’377 patents.  Regarding the ’332 patent, the Commission noted that the ID relied on the Ahmed reference, “but the parties dispute what the reference discloses and whether it constitutes prior art.”  With respect to the ’377 patent, the Commission observed that “the parties dispute what was conventional at the time of the invention.”  The Commission thus found that the ID did not view the evidence in the light most favorable to Fitbit as required to grant summary determination.  Accordingly, the Commission vacated the ID as to the ’332 and ’337 patents and remanded the investigation. The Commission determined not to review the summary determination as to the ’760 patent.