By Eric Schweibenz
On November 22, 2016, ALJ Thomas B. Pender issued Order No. 25 setting the target date for the remand investigation in Certain Wearable Activity Tracking Devices, Systems, and Components Thereof (Inv. No. 337-TA-973).

By way of background, this investigation is based on a 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 U.S. Patent Nos. 8,920,332 (“the ’332 patent”), 8,868,337 (“the ’337 patent”), and 9,089,760 (“the ’760 patent”). 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 Pender issued the public version of Order No. 24 granting Respondents AliphCom d/b/a Jawbone and BodyMedia, Inc.’s (collectively, “Jawbone”) motion for summary determination of invalidity under 35 U.S.C. § 101 and terminating the investigation in its entirety. See our August 18, 2016 post for more details on the Initial Determination (“ID”). On September 7, 2016, the ITC issued a notice and order reviewing-in-part and vacating-in-part the ID with respect to the ’332 and ’377 patents. See our September 29, 2016 post for more details on the ITC’s notice and order.

According to Order No. 25, ALJ Pender held a teleconference during which counsel indicated that recent developments in the businesses of the parties may warrant a voluntary withdrawal of the complaint and termination of the investigation. The ALJ granted the parties two weeks’ leave to conduct a 30(b)(6) deposition of Respondents’ witness on this point. Thereafter, ALJ Pender granted the parties’ joint motion for an extension of time to hold a status conference to discuss the results of the discovery, and then held a teleconference to determine if there were grounds to continue the investigation. Counsel for Fitbit indicated that the recently obtained discovery warranted a continuation of the investigation as well as a reopening of discovery, the latter of which Jawbone opposed but the Commission Investigative Staff supported. After hearing the parties’ arguments, ALJ Pender found good cause to reopen discovery and set the target date for completion of the remand investigation for November 6, 2017 (which is approximately seven months later than the original target date). The ALJ’s final initial determination on remand is due by July 6, 2017.

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