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ALJ Orders

ALJ Essex Extends Target Date And Sets Procedural Schedule In Certain Refrigerators (337-TA-632)

By Eric Schweibenz
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Jul
22

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ALJ Bullock Issues Public Version of Initial Determination in Certain Probe Card Assemblies (337-TA-621) Finding No Violation of Section 337

By Eric Schweibenz
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Jul
23
Further to our June 29, 2009 post, on July 20, ALJ Charles E. Bullock issued the public version of his initial determination (“ID”) in the matter of Certain Probe Card Assemblies, Components Thereof and Certain Probe Card Assemblies, Components Thereof and Certain Tested DRAM and NAND Flash Memory Devices and Products Containing Same (Inv. No. 337-TA-621).

In the 205-page ID, ALJ Bullock held that there was no violation of Section 337 by respondents Phicom Corp. and Phiam Corp. (collectively, “Phicom”), and Micronics Japan Co., Ltd., and MJC Electronics Corp. (collectively, “Micronics”) for importation into the U.S., the sale for importation, or the sale within the U.S. after importation of certain probe card assemblies and components thereof, certain probe card assemblies and components thereof, and certain tested DRAM and NAND flash memory devices and products containing same, in connection with claims 1, 3, 4, 18, 19, 23, 24, 29, 32, 33, 36, 37, and 41 of U.S. Patent No. 6,615,485 (the ‘485 patent); claims 1-3, 12, 24, and 25 of U.S. Patent No. 6,509,751 (the ‘751 patent); claim 19 of U.S. Patent No. 7,225,538 (the ‘538 patent); and claims 21-23, 27-37, and 33-35 of U.S. Patent No. 5,994,152 (the ‘152 patent).  Further, the ALJ determined that FormFactor, Inc. had satisfied the domestic industry requirement with respect to the ‘751 patent, but that it had not satisfied the domestic industry requirement for the ‘485, ‘538, and ‘152 patents.

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ALJ Rogers Grants-In-Part and Denies-In-Part Motion For Leave To Submit Supplemental Notice Of Prior Art In Certain Electronic Devices (337-TA-673/667)

By Eric Schweibenz
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Jul
24
On July 22, 2009, ALJ Robert K. Rogers, Jr. issued Order No. 24C in Certain Electronic Devices, Including Handheld Wireless Communications Devices (Inv. Nos. 337-TA-673 and 337-TA-667).  In the Order, ALJ Rogers granted-in-part and denied-in-part a motion for leave to submit a supplemental notice of prior art filed by respondents Samsung Electronics Co., Ltd., Samsung Electronics America, Inc., and Samsung Telecommunications America, LLP’s (collectively “Samsung”).

Samsung filed its motion for leave on July 9, 2009, seeking to add eight prior art references relating to complainant Saxon Innovations, LLC’s (“Saxon”) U.S. Patent No. 5,530,597 and two prior art references relating to Saxon’s U.S. Patent No. 5,608,873.  Samsung argued that Saxon had supplemented its contention interrogatory responses at a late date and that, in light of Saxon’s new contentions, Samsung had discovered the ten new prior art references.  Further, Samsung asserted that it acted promptly by providing notice of the new references to the parties, supplementing its own invalidity contention interrogatory responses, and filing the instant motion for leave.

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ALJ Essex Issues Initial Determination Staying Investigation In Course Management System Software Products (337-TA-677) Pending Decision By Federal Circuit

By Eric Schweibenz
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Jul
27
On July 24, 2009, ALJ Theodore R. Essex issued Order No. 5 in Certain Course Management System Software Products (Inv. No. 337-TA-677), staying the investigation pending a decision from the Federal Circuit in an appeal between the same parties on the identical patent that is the subject of the 677 investigation.

As we explained in our April 22 and June 5 posts, Complainant Blackboard, Inc. (“Blackboard”) accused respondent Desire2Learn Incorporated (“D2L”) of violating Section 337 based on infringement of U.S. Patent No. 6,988,138 (“the ‘138 patent”).  The ‘138 patent is currently involved in a reexamination proceeding at the U.S. Patent and Trademark Office and an appellate proceeding before the Court of Appeals for the Federal Circuit.

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ALJ Gildea Issues Initial Determination Finding Violation Of Section 337 In Certain Laser Imageable Lithographic Printing Plates (337-TA-636)

By Eric Schweibenz
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Jul
28
On July 24, 2009, ALJ E. James Gildea issued a notice regarding his Final Initial Determination and Recommended Determination on Remedy and Bond in Certain Laser Imageable Lithographic Printing Plates (Inv. No. 337-TA-636). 

The Complainant in the 636 investigation is Presstek, Inc., and Respondents are VIM Technologies, Inc., Hanita Coatings RCA, Ltd., AteCe Canada, Guaranteed Service & Supplies, Inc., Recognition Systems, Inc., and Spicers Paper, Inc.  According to the notice, ALJ Gildea held that a violation of section 337 occurred in the importation into the U.S., the sale for importation, or the sale within the U.S. after importation of certain laser imageable lithographic printing plates by reason of infringement of one or more of claims 1, 10, and 27 of U.S. Patent No. 5,339,737, and one or more of claims 20, 21, and 23 of U.S. Patent No. 5,487,338.

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ALJ Charneski Rules On Motion To Compel In Certain Cast Steel Railway Wheels (337-TA-655)

By Eric Schweibenz
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Jul
28
On July 27, 2009, ALJ Carl C. Charneski issued the public version of Order No. 26 (dated June 22, 2009) in Certain Cast Steel Railway Wheels, Certain Processes For Manufacturing Or Relating To Same And Certain Products Containing Same (Inv. No. 337-TA-655).  In the Order, ALJ Charneski granted-in-part Complainant Amsted Industries, Inc.’s (“Amsted”) motion to compel Respondents Standard Car Truck Company, Inc. and Barber Tianrui Railway Supply, LLC (collectively, “SCT”) to produce certain documents created after Amsted’s August 14, 2008 complaint. 

While ALJ Charneski determined that Amsted’s motion to compel was “overly broad,” he granted the motion with respect to those document requests supported by the Commission Investigative Staff (the “Staff”).  The Staff asserted that 11 of the 17 document requests identified by Amsted in its motion to compel sought documents relevant to the investigation.  ALJ Charneski granted the motion with respect to Amsted’s requests regarding (1) “certifications by the American Association of Railroads, pricing or market information, information provided to customers, and sales plans, strategic plans and similar documents, pertaining to cast steel railway wheels manufactured by Tianrui Group Foundry Company Limited”; and (2) “training or education relating to cast steel railway wheels that respondents have provided to their employees.”

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ALJ Charneski Denies Motion To Terminate Investigation In Certain Cast Steel Railway Wheels (337-TA-655)

By Eric Schweibenz
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Jul
28
On July 27, 2009, ALJ Carl C. Charneski issued the public version of Order No. 14 (dated February 27, 2009) in Certain Cast Steel Railway Wheels, Certain Processes For Manufacturing Or Relating To Same And Certain Products Containing Same (Inv. No. 337-TA-655).  In the Order, ALJ Charneski denied Respondent Tianrui Group Foundry Limited’s (“Tianrui Foundry”) motion to terminate the investigation based on its assertion that Complainant Amsted Industries Incorporated’s (“Amsted”) complaint did not allege a claim upon which relief can be granted.

By way of background, Amsted filed a complaint against Tianrui Foundry, Tianrui Group Company Limited, Standard Car Truck Company, and Barber Tianrui Railway Supply, LLC (collectively, “Respondents”) alleging violation of section 337 based on the importation and sale of Tianrui Wheels manufactured through a process that allegedly uses Amsted’s misappropriated trade secrets (the “ABC Trade Secrets”).  Amsted’s complaint further alleges that Respondents recruited nine former employees of Datong ABC Castings Company Limited, a licensee of Amsted’s ABC Technology located in China, for the purpose of acquiring the ABC Trade Secrets.

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ALJ Charneski Denies Motion To Compel In Certain Cast Steel Railway Wheels (337-TA-655)

By Eric Schweibenz
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Jul
28
On July 27, 2009, ALJ Carl C. Charneski issued the public version of Order No. 23 (dated April 24, 2009) in Certain Cast Steel Railway Wheels, Certain Processes For Manufacturing Or Relating To Same And Certain Products Containing Same (Inv. No. 337-TA-655).  In the Order, ALJ Charneski denied Respondents Standard Car Truck, Inc., Barber Tianrui Railway Supply, Tianrui Group Company Limited, and Tianrui Group Foundry Company Limited’s (collectively, “Respondents”) motion to compel.

In their motion, Respondents sought an order from ALJ Charneski compelling Complainant Amsted Industries Incorporated (“Amsted”) to provide a list of the “Griffin Trade Secrets.”  Amsted and the Commission Investigative Staff (the “Staff”) opposed Respondents’ motion.  Specifically, Amsted argued that the disputed discovery request had been “sufficiently answered” since it previously produced documents and things relating to “Griffin Wheel’s Kansas City, Kansas, cast steel railway facility and allowed [R]espondents to inspect that facility.”  Amsted further argued that “this investigation is an unfair-competition-based investigation brought under Section 337(a)(1)(A) and involves the Respondents’ misappropriation of certain ABC trade Secrets.”

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ALJ Luckern Grants Motion To Modify The Protective Order In Certain Energy Drink Products (337-TA-678)

By Eric Schweibenz
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Jul
29
On July 28, 2009, Chief ALJ Paul J. Luckern issued Order No. 8 in Certain Energy Drink Products (Inv. No. 337-TA-678).  In the Order, ALJ Luckern granted complainants Red Bull GmbH and Red Bull North America, Inc.’s (collectively, “Red Bull”)  motion to modify the protective order (Order No. 2) to address the inadvertent disclosure of documents and things subject to the attorney-client privilege or work product immunity by adding a claw-back provision.  Respondents India Imports Inc., Washington Food and Supply of D.C., Inc., and Vending Plus, Inc. (collectively, “Respondents”) opposed the motion, and the Commission Investigative Staff did not take a position on the motion.

In the Order, ALJ Luckern acknowledged that he has included similar claw-back provisions in the past, but never where there was opposition to such provision.  As stated in the Order, Respondents argued that the inclusion of the proposed claw-back provision would invite discovery abuses and that the proposed claw-back provision is “a rule that confers the greatest benefits on the party with the largest number of documents to produce, viz. complainants.”  ALJ Luckern noted that the proposed claw-back provision is standard in protective orders in both federal district court cases and section 337 investigations, and further noted that Red Bull had represented that they have reviewed their documents for privilege prior to producing them.

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ALJ Luckern Issues Initial Determination Granting Complainants’ Summary Determination Motion That A Domestic Industry Exists Based On Licensing Activities In Certain 3G Mobile Handsets (337-TA-613)

By Eric Schweibenz
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Jul
29
On July 27, 2009, Chief ALJ Paul J. Luckern issued the heavily redacted public version of Order No. 42 (dated March 10, 2009) granting Complainants InterDigital Communications, LLC and InterDigital Technology Corp.’s (“InterDigital”) motion for summary determination that InterDigital’s U.S. licensing activities satisfy the domestic industry requirements of 19 U.S.C. § 1337(a)(3)(C) in Certain 3G Mobile Handsets and Components Thereof(Inv. No. 337-TA-613).

Respondents Nokia Inc. and Nokia Corporation (“Nokia”) opposed InterDigital’s summary determination motion on the basis that (1) the technical prong requires the existence of an article protected by the asserted patents; (2) InterDigital failed to demonstrate a nexus between the asserted patents and its licensing program; (3) a broad licensing program cannot satisfy the nexus requirement; (4) InterDigital failed to show that the asserted patents were important to its licensing program; (5) genuine issues of material fact existed as to whether InterDigital’s investments are substantial as required by section 337; and (6) InterDigital’s purported investment total includes activities beyond the asserted patents, such as licensing of other technology and activities prior to the issuance of the asserted patents.  According to the Order, the Commission Investigative Staff did not oppose InterDigital’s summary determination motion in view of ALJ Luckern’s Order No. 20 in Certain 3G Wideband Code Division Multiple Access (WCDMA) Handsets (Inv. No. 337-TA-601), which was adopted by the Commission, granting a motion for summary determination that a domestic industry can be established based solely on licensing activities. 

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ALJ Gildea Denies Motion To Strike Experts’ Hearing Testimony In Certain Laser Imageable Lithographic Printing Plates (337-TA-636)

By Eric Schweibenz
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Aug
04
On August 3, 2009, ALJ E. James Gildea issued the public version of Order No. 30 (dated July 24, 2009) in Certain Laser Imageable Lithographic Printing Plates (Inv. No. 337-TA-636).  In the Order, ALJ Gildea denied a motion to strike portions of the hearing testimony of two experts for Complainant Presstek, Inc. (“Presstek”) filed by Respondents VIM Technologies, Ltd., Hanita Coatings RCA, Ltd., AteCe Canada, Guaranteed Service & Supplies, Inc., Recognition Systems, Inc., and Spicers Paper, Inc. (collectively, “Respondents”).

In their motion, Respondents sought to strike the hearing testimony of Presstek experts Charles W. Magee, Ph.D. (“Dr. Magee”) and Steven A. Carlson, Ph.D. (“Dr. Carlson”) regarding “the relative speeds at which light travels through the ablative/absorptive layer and at which ablation occurs” and “reflection with respect to the substrate of the accused VIM plates.”  According to the Order, Presstek opposed the motion and the Commission Investigative Staff filed a response “supporting Respondents’ motion only with respect to striking portions of Dr. Magee’s hearing testimony.”

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ITC Institutes Investigation Regarding Certain Collaborative System Products (337-TA-682)

By Eric Schweibenz
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Aug
04
On August 4, 2009, the U.S. International Trade Commission issued a press release announcing that it voted to institute an investigation of Certain Collaborative System Products and Components Thereof (Inv. No. 337-TA-682).

The investigation is based on a July 2, 2009 complaint filed by eInstruction Corporation of Denton, Texas.  As we explained in our July 7 post, the complaint alleges violations of Section 337 in the importation into the U.S. and sale of certain products using collaborative system technology and components thereof that infringe U.S. Patent No. 6,390,673.

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ALJ Rogers Denies Motion For Protective Order In Certain Electronic Devices (337-TA-667/337-TA-673)

By Eric Schweibenz
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Aug
06
On August 5, 2009, ALJ Robert K. Rogers, Jr. issued the public version of Order No. 21C (dated July 14, 2009) in Certain Electronic Devices, Including Handheld Wireless Communications Devices (Inv. No. 337-TA-667/337-TA-673).  In the Order, ALJ Rogers denied Respondent Palm, Inc.’s (“Palm”) motion for protective order to preclude Complainant Saxon Innovations, LLC (“Saxon”) from accusing the Palm Pre phone of infringement in this investigation.

By way of background, the procedural schedule in this investigation required the parties to serve responses to contention interrogatories on June 10, 2009.  Saxon served contention interrogatory responses on June 10, including a response to Palm’s interrogatory seeking identification of the accused Palm products.  On June 18, 2009, Saxon served a supplemental interrogatory response alleging for the first time that Palm’s Pre phone infringed U.S. Patent No. 5,530,597.

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ALJ Luckern Issues Public Version Of Initial Determination In Certain Liquid Crystal Display Modules (337-TA-634) Finding Violation Of Section 337

By Eric Schweibenz
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Aug
07
Further to our June 16 post, on August 5, 2009, Chief ALJ Paul J. Luckern issued the public version of his Final Initial and Recommended Determinations (“ID”) in Certain Liquid Crystal Display Modules, Products Containing Same, and Methods For Using The Same (Inv. No. 337-TA-634).  The Complainant in this investigation is Sharp Corporation (“Sharp”) and the Respondents are Samsung Electronics Co., Ltd., Samsung Electronics America, Inc., and Samsung Semiconductor, Inc. (collectively, “Samsung”).

In the 209-page ID, ALJ Luckern held that there was a violation of Section 337 by Samsung for importation into the U.S., sale for importation, and sale within the U.S. after importation of infringing liquid crystal display devices and products containing Samsung’s devices, in connection with certain claims of U.S. Patent No. 7,304,703 (the ‘703 patent); U.S. Patent No. 6,879,364 (the ‘364 patent); U.S. Patent No. 6,952,192 (the ‘192 patent); and U.S. Patent No. 7,304,626 (the ‘626 patent).  Further, ALJ Luckern determined that Sharp met the domestic industry (technical prong) requirement for each of the patents-in-suit because Sharp’s domestic industry articles practiced at least one asserted claim for each patent.

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Law Firm’s Motion to Intervene and to Preclude Disclosure of Confidential Business Information Is Denied in Certain CCFL Inverter Circuits (337-TA-666)

By Eric Schweibenz
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Aug
07
On August 6, 2009, ALJ E. James Gildea issued the public version of Order No. 15 (dated July 17, 2009) denying a motion by Finnegan, Henderson, Farabow, Garrett & Dunner LLP (“Finnegan”) to intervene for the purpose of enforcing the terms of a retainer agreement in Certain Cold Cathode Fluorescent Lamp (“CCFL”) Inverter Circuits and Products Containing the Same (Inv. No. 337-TA-666).  The retainer agreement at issue is between Finnegan and Melvin Ray Mercer and was entered into on behalf of Finnegan’s clients in a prior litigation, Sony Corporation, Sony EMCS Corporation, and Sony Electronic Inc. (collectively, “Sony”).

Finnegan represents respondents Monolithic Power Systems, Inc., ASUSTeK Computer Inc., and ASUS Computer International America (collectively, “the MPS and ASUS respondents”) in the investigation.  Finnegan argued that Mercer has a conflict of interest that prevents him from serving as a technical consultant to complainants 02 Micro International Ltd. and 02 Micro Inc. (collectively, “O2 Micro”).  Mercer was retained by Finnegan to assist the firm in defending Sony in a patent infringement lawsuit in the Eastern District of Texas regarding three patents that, although different than the patent asserted in the investigation, share the same specification with the asserted patent.  Finnegan argued that Mercer was privy to Finnegan’s work product that is potentially applicable to defenses that MPS and ASUS may assert in this investigation, and that O2 Micro was seeking to gain an unfair advantage by gaining access to that work product.

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Update Regarding Certain Lighting Control Devices (337-TA-681)

By Eric Schweibenz
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Aug
10
Further to our July 22 post, ALJ Robert K. Rogers, Jr. issued Order No. 4 on August 6, 2009 in Certain Lighting Control Devices Including Dimmer Switches and Parts Thereof (Inv. No. 337-TA-681).  In the Order, ALJ Rogers sets the procedural schedule for the investigation, including a March 8, 2010 start date for the evidentiary hearing.

Also, on August 6, ALJ Rogers issued Order No. 5 setting the target date for this investigation.  Specifically, ALJ Rogers set October 25, 2010 as the target date for completion of the investigation (which is 15 months after institution of the investigation).

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ALJ Charneski Issues Initial Determination Finding Violation Of Section 337 In Certain Variable Speed Wind Turbines (337-TA-641)

By Eric Schweibenz
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Aug
10
On August 7, 2009, ALJ Carl C. Charneski issued a notice regarding his Initial Determination in Certain Variable Speed Wind Turbines and Components Thereof (Inv. No. 337-TA-641).

The Complainant in this investigation is General Electric Co. and the Respondents are Mitsubishi Heavy Industries, Ltd., Mitsubishi Heavy Industries America, Inc., and Mitsubishi Power System, Inc.  According to the notice, ALJ Charneski determined that a violation of Section 337 occurred with respect to Mitsubishi’s turbines.  In particular, ALJ Charneski held that Mitsubishi’s turbines infringe claim 121 of the asserted ‘039 patent, and claim 15 of the asserted ‘985 patent.  Additionally, while ALJ Charneski determined that Mitsubishi’s turbines infringed claims 5, 7, and 8 of the asserted ‘221 patent, he also determined that GE did not practice any claim of the asserted ‘221 patent for purposes of the domestic industry (technical prong) requirement.

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ALJ Essex Extends Target Date And Reschedules Hearing Dates In Certain Optoelectronic Devices (337-TA-669)

By Eric Schweibenz
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Aug
12
On August 10, 2009, ALJ Theodore R. Essex issued Order No. 5 in Certain Optoelectronic Devices, Components Thereof, and Products Containing The Same (Inv. No. 337-TA-669).  In the Order, ALJ Essex extends the target date for this investigation by one month to July 12, 2010, and moves the hearing dates back by approximately one month to November 16-20, 2009.

According to the Order, the “ALJ’s docket has gotten increasingly busy – in addition to his responsibilities in other investigations, the ALJ has two final initial determinations in Investigation Nos. 337-TA-630 and 337-TA-657 and a remand initial determination in Investigation No. 337-TA-632 due prior to the hearing dates in this investigation as well as an evidentiary hearing in Investigation No. 337-TA-661, all of which are set to transpire before the hearing dates in this investigation.”

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ALJ Gildea Issues Public Version of Initial Determination in Certain Laser Imageable Lithographic Printing Plates (337-TA-636) Finding Violation of Section 337

By Eric Schweibenz
|
Aug
13
Further to our July 28 post, on August 7, 2009, ALJ E. James Gildea issued the corrected public version of his Initial and Recommended Determinations (“ID”) in Certain Laser Imageable Lithographic Printing Plates (Inv. No. 337-TA-636).  In this investigation, the Complainant is Presstek, Inc. (“Presstek”) and the Respondents are VIM Technologies, Ltd. (“VIM”), Hanita Coatings RCA, Ltd. (“Hanita”), Guaranteed Services & Supplies, Inc. (“Guaranteed”), AteCe Canada (“AteCe”), Spicers Paper, Inc. (“Spicers”), and Recognition Systems, Inc. (“Recognition”) (collectively, “Respondents”).

The patents-in-suit are U.S. Patent Nos. 5,339,737 (the “‘737 patent”) and 4,487,338 (the “‘338 patent”), which are both generally directed to lithographic printing plates suitable for imaging with low-to-moderate power levels of near-infrared laser radiation.  In the 105-page ID, ALJ Gildea held that a violation of Section 337 occurred in the importation into the U.S., the sale for importation, or the sale within the U.S. after importation of certain laser imageable lithographic printing plates (the “accused products”) by reason of infringement of one or more of Claims 1, 10, and 27 of the ‘737 patent, and one or more of Claims 20, 21, and 23 of the ‘338 patent.  Further, ALJ Gildea found that a domestic industry exists with respect to the ‘737 and ‘338 patents.

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Update Regarding Certain Optoelectronic Devices (337-TA-669)

By Eric Schweibenz
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Aug
14

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The opinions, commentary and characterizations provided to this online forum by the authors and moderators are provided for encouraging discussion, thought and debate on important ITC issues. These postings are in no way representative of the opinions of the Oblon firm, or its clients, but rather the personal views of the individual authors.