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ALJ Orders

ALJ Rogers Grants-In-Part Motion To Quash Subpoena In Certain Non-Shellfish Derived Glucosamine (337-TA-668)

By Eric Schweibenz
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Jun
09
On June 5, 2009, ALJ Robert K. Rogers, Jr. issued Order No. 16 in Certain Non-Shellfish Derived Glucosamine and Products Containing Same (337-TA-668).  In the Order, ALJ Rogers granted-in-part and denied-in-part TSI Health Sciences, Inc.’s (“TSI”) motion to quash a subpoena served by respondent Nantong Foreign Trade Medicines & Health Products Co., Ltd. (“NFT”).

According to the Order, TSI was previously a respondent in the investigation, but settled with complainant Cargill, Incorporated (“Cargill”).  Based on ALJ Rogers’ previously issued Order No. 11, the remaining respondents in the investigation did not receive the full settlement agreement between Cargill and TSI.

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ALJ Luckern Rules That Professor Rothschild’s Licensing Activities Satisfy The Domestic Industry Requirement In Certain Short-Wavelength Light Emitting Diodes (337-TA-640)

By Eric Schweibenz
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Jun
11
On June 10, 2009, Chief ALJ Paul J. Luckern issued the public version of his May 8, 2009 Initial Determination (Order No. 72) in Certain Short-Wavelength Light Emitting Diodes, Laser Diodes and Products Containing Same (Inv. No. 337-TA-640), granting Professor Gertrude Neumark Rothschild’s motion for summary determination that she satisfied the domestic industry requirement.  One day later, on June 11, the Commission issued a Notice that it would review the ID – see our June 11 post for details.

On April 13, Professor Rothschild moved for summary determination that her substantial investment in exploiting, licensing, and enforcing the asserted patent (U.S. Patent No. 5,252,499 (the ‘499 patent)) satisfied the domestic industry requirement.  Respondents Toshiba Corp. and Panasonic Corp. opposed (note that on May 19, 2009, ALJ Luckern issued an order granting Rothschild’s motion to consolidate Certain Light Emitting Diode Chips, Laser Diode Chips and Products Containing Same (Inv. No. 337-TA-674) with the 640 investigation – see our May 21 post).  The Commission Investigative Staff also opposed the motion.

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ALJ Gildea Denies Motion For Summary Determination Of Non-Infringement In Certain Active Comfort Footwear (337-TA-660)

By Eric Schweibenz
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Jun
12
On June 10, 2009, ALJ E. James Gildea issued the public version of Order No. 8 (dated June 1, 2009) in Certain Active Comfort Footwear (Inv. No. 337-TA-660).  In the Order, ALJ Gildea denied Respondent RYN Korea Co. Ltd.’s (“RYN”) motion for summary determination of non-infringement of U.S. Patent No. 6,341,432 (the “‘432 patent”).

According to the Order, RYN argued that certain of its shoe products (“Accused Shoes”) did not literally infringe the ‘432 patent because the Accused Shoes did not “have the claimed structure for ‘recess (13)’ and ‘material element (25)’” limitations.  RYN also argued that Complainants Masai Marketing & Trading AG and Masai USA Corp. (collectively, “Masai”) were estopped from asserting infringement under the doctrine of equivalents because of certain claim amendments Masai made during prosecution of the patent-in-suit.  In opposition, Masai asserted that RYN’s motion was insufficient because it did not “provide adequate factual evidence of the level of skill in the relevant art” and that there were genuine issues of material fact as to whether the Accused Shoes had a “material element” and a “recess ‘between’ the sole body and covering” as claimed in the patent-in-suit.  Further, Masai argued that RYN was incorrect in asserting that Masai alleged infringement under the doctrine of equivalents.  The Commission Investigative Staff (“Staff”) opposed RYN’s motion for summary determination of non-infringement arguing that Masai did not assert infringement under the doctrine of equivalents and that RYN’s non-infringement arguments with respect to literal infringement were not based on factual evidence but rather, on conclusory expert statements.  Staff also argued that there was “a genuine issue of material fact as to the structure of the sole and location of the ‘tunnel’ or ‘recess’ in the Accused Shoes.”

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Update Regarding Certain Wireless Communications Devices And Components Thereof (337-TA-675)

By Eric Schweibenz
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Jun
15
Further to our May 12 post, on June 11, 2009, ALJ E. James Gildea issued Order No. 7: Setting Procedural Schedule in Certain Wireless Communications Devices and Components Thereof (337-TA-675).

According to the Order, the evidentiary hearing in this matter will commence on January 19, 2010.

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ALJ Luckern Issues Initial Determination in Certain Liquid Crystal Display Modules (337-TA-634)

By Eric Schweibenz
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Jun
16
On June 12, 2009, Chief ALJ Paul J. Luckern issued a notice regarding his Initial Determination in Certain Liquid Crystal Display Modules, Products Containing Same, and Methods for Using the Same (Inv. No. 337-TA-634).

According to the notice, ALJ Luckern held that there is a violation of section 337 in this investigation by respondents Samsung Electronics Co., Ltd., Samsung Electronics America, Inc., and Samsung Semiconductor, Inc.  The notice further indicates that “[s]hould the Commission find a violation, the administrative law judge recommends the issuance of a limited exclusion order barring entry into the United States of infringing liquid crystal display modules and products containing respondents’ infringing liquid crystal display modules, including respondents’ downstream LCD televisions, LCD computer monitors and LCD professional displays as well as the issuance of a cease and desist order.”

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ALJ Essex Requests Supplemental Briefing In Certain Semiconductor Chips With Minimized Chip Package Size (337-TA-630)

By Eric Schweibenz
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Jun
17
On June 12, 2009, ALJ Theodore R. Essex issued Order No. 43 in Certain Semiconductor Chips with Minimized Chip Package Size and Products Containing Same (337-TA-630).  In the Order, ALJ Essex requested that the parties provide supplemental briefing in connection with the Commission’s recently issued opinion in Certain Semiconductor Chips with Minimized Chip Package Size and Products Containing Same (337-TA-605) (see our June 11 post for details about this opinion).

Specifically, ALJ Essex sought “the parties’ arguments on how the Commission’s Opinion in the ‘605 Investigation and its findings on Dr. Qu’s infringement analysis will affect the ALJ’s analysis in this investigation, if at all.”  ALJ Essex further noted that “[t]he parties should limit their briefing to the infringement analysis for the ‘627 and the ‘977 Patents in this investigation.”

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ALJ Rogers Denies NFT’s Motion For Summary Determination Of Invalidity In Certain Non-Shellfish Derived Glucosamine (337-TA-668)

By Eric Schweibenz
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Jun
23
On June 22, 2009, ALJ Robert K. Rogers, Jr. issued Order No. 20 in Certain Non-Shellfish Derived Glucosamine and Products Containing Same (337-TA-668).  In the Order, ALJ Rogers denied respondent Nantong Foreign Medicines & Health Product Co., Ltd.’s (NFT) motion for summary determination of invalidity.

According to the Order, complainant Cargill, Inc. asserts that NFT infringes claims 1-10 of U.S. Patent No. 7,049,433 (the ‘433 patent), which are directed to a method of making glucosamine.  Claim 1 is an independent claim, and claims 2-10 depend from claim 1.

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ALJ Bullock Issues Initial Determination in Certain Probe Card Assemblies (337-TA-621)

By Eric Schweibenz
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Jun
29
On June 29, 2009, ALJ Charles E. Bullock issued a notice regarding his Final Initial Determination and Recommended Determination on Remedy and Bond in Certain Probe Card Assemblies, Components Thereof and Certain Tested DRAM and NAND Flash Memory Devices and Products Containing Same (Inv. No. 337-TA-621). 

According to the notice, ALJ Bullock held that there is no violation of section 337 in this investigation by respondents Phicom Corp., Phiam Corp., Micronics Japan Co., Ltd., and MJC Electronics Corp. 

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ALJ Essex Issues Claim Construction Order in Certain Semiconductor Chips Having Synchronous Dynamic Random Access Memory Controllers (337-TA-661)

By Eric Schweibenz
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Jun
29
On June 22, 2009, ALJ Theodore R. Essex issued Order No. 12, construing the disputed terms of the asserted claims of the patents-in-suit in Certain Semiconductor Chips Having Synchronous Dynamic Random Access Memory Controllers and Products Containing Same (Inv. No. 337-TA-661).

In this investigation, Complainant Rambus, Inc. (“Rambus”) alleges that respondents NVIDIA Corp.; Asustek Computer Inc.; ASUS Computer International, Inc.; BFG Technologies, Inc.; Biostar Microtech (U.S.A.) Corp.; Biostar Microtech International Corp.; Diablotek Inc.; EVGA Corp.; G.B.T. Inc.; Giga-byte Technology Co., Ltd.; Hewlett-Packard Co.; MSI Computer Corp.; Micro-star International Co., Ltd.; Palit Multimedia Inc.; Palit Microsystems Ltd.; Pine Technology Holdings, Ltd.; and Sparkle Computer Co., Ltd. (“Respondents”) infringe certain claims of U.S. Patent Nos., 7,177,998; 7,210,016; 6,470,405; 6,591,353; 7,287,109; 7,287,119; 7,330,952; 7,330,953; and 7,360,050.  The patents-in-suit are generally directed to memory controllers for controlling data transfers to and from dynamic random access memory in computer systems.  A Markman hearing was held on March 24, 2009.

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ALJ Bullock Extends Target Date In Certain Flash Memory Chips (337-TA-664)

By Eric Schweibenz
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Jul
01
On June 30, 2009, ALJ Charles E. Bullock issued Order No. 9 in Certain Flash Memory Chips and Products Containing The Same (Inv. No. 337-TA-664).

According to the Order, complainants Spansion, Inc. and Spansion LLC filed a motion to lift the stay and establish a new schedule for the investigation “due to the bankruptcy court’s disapproval of the proposed settlement agreement.”  In view of the parties’ submissions regarding proposed procedural schedules, ALJ Bullock extended the target date in the investigation by seven months, or until January 18, 2011.  In addition, the revised procedural schedule issued by ALJ Bullock includes a schedule for the exchange of claim construction briefs and a claim construction hearing.  Further, ALJ Bullock provides in the procedural schedule that he will “make every attempt to issue the claim construction order by [two months before the evidentiary hearing].”

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ALJ Luckern Requires Submissions from Complainant, Respondents and Commission Investigative Staff in Certain Video Games (337-TA-658)

By Eric Schweibenz
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Jul
02
On July 2, 2009, Chief ALJ Paul J. Luckern issued the public version of Order No. 37 (dated April 23, 2009) in Certain Video Games and Related Three-Dimensional Pointing Devices (337-TA-658).  In the Order, ALJ Luckern required Complainant Hillcrest Laboratories, Inc. (“Hillcrest”), Respondents Nintendo Co., Ltd. and Nintendo of America, Inc. (collectively “Nintendo”), and the Commission Investigative Staff (“Staff”) to answer questions and provide submissions “as an educational vehicle” in lieu of a tutorial on the subject matter of the investigation.

According to the Order, the ALJ required Hillcrest to answer 50 questions about the disclosure and claims of the patents-in-suit.  Specifically, the ALJ’s questions related to, among other things, the prosecution history of the patents-in-suit, an equation referenced in the patents-in-suit, the accuracy of statements in the specification of the patents-in-suit, the disputed claim terms and their interpretation, the evidence Hillcrest would offer at the evidentiary hearing in support of its positions, the understanding of a person of ordinary skill in the art with respect to certain issues, and various assertions made in Nintendo’s pre-hearing statement.

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Did You Know How Claim Construction Is Handled In Patent-Based Section 337 Investigations?

By Eric Schweibenz
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Jul
06
There are no general ITC rules regarding the procedure for how an Administrative Law Judge (ALJ) is to construe claims and, therefore, claim construction is ALJ specific.  Historically, claim construction testimony and evidence in section 337 investigations has been presented during the evidentiary hearing along with other arguments, including, e.g., infringement and invalidity and, thus, there was no separate Markman hearing and no separate ruling.  In this respect, the parties to an investigation typically received the ALJ’s claim construction of disputed terms for the first time as part of the ALJ’s Initial Determination (ID).  More recently, certain ALJs have conducted Markman hearings prior to the evidentiary hearing.  In investigations where a Markman hearing is held, there is no requirement that the ALJ provide a separate claim construction ruling prior to the issuance of the ID.  Since the ALJ issues the ID after the evidentiary hearing (absent special circumstances), the parties are often forced to make arguments based on the competing claim constructions asserted by the other parties so as not to waive any arguments.  However, ALJ Essex recently issued an Order that construed disputed claim terms prior to an evidentiary hearing in Certain Semiconductor Chips Having Synchronous Dynamic Random Access Memory Controllers and Products Containing Same (Inv. No. 337-TA-661) (for more on this matter, see our June 29 post).

How a given ALJ handles claim construction can be discerned by examining each ALJ’s recently issued ground rules.  The Ground Rules of ALJs Rogers, Bullock, and Essex specifically address claim construction in a provision entitled “Markman Hearing on Claim Construction.”  This provision provides a general outline and structure of the procedural schedule surrounding a Markman hearing if the ALJ determines that a Markman hearing would be beneficial to the investigation.

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Update Regarding Certain Energy Drink Products (337-TA-678)

By Eric Schweibenz
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Jul
08
Further to our June 15 post, on July 7, 2009, Chief ALJ Paul J. Luckern issued Order No. 4 in Certain Energy Drink Products (337-TA-678).

According to the Order, ALJ Luckern set September 17, 2010 as the target date for completion of this investigation (which is 15 months after institution of the investigation).  ALJ Luckern further indicated that any final initial determination on violation should be filed no later than May 17, 2010.  In addition, ALJ Luckern noted that the evidentiary hearing in this matter will commence on February 16, 2010.

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ITC Issues Public Version Of Initial Determination In Certain NAND Flash Memory Devices (337-TA-553)

By Eric Schweibenz
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Jul
10

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ALJ Rogers Denies Joint Motion To Terminate Investigation In Certain Non-Shellfish Derived Glucosamine (337-TA-668)

By Eric Schweibenz
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Jul
14
On July 9, 2009, ALJ Robert K. Rogers, Jr. issued the public version of Order No. 23 (dated June 29, 2009) in Certain Non-Shellfish Derived Glucosamine and Products Containing Same (337-TA-668).  In the Order, ALJ Rogers (i) denied a joint motion filed by complainant Cargill, Inc. (“Cargill”) and respondent Ethical Naturals, Inc. (“ENI”) to terminate the investigation as to respondent ENI, and (ii) granted a joint motion for leave filed by Cargill and ENI to not serve the remaining respondents with certain portions of the settlement agreement between Cargill and ENI (the “Settlement Agreement”).

According to the Order, the ITC’s rules provide that “in the case of a proposed termination by settlement agreement, the parties may file statements regarding the impact of the proposed termination on the public interest, and the [ALJ] may hear argument, although no discovery may be compelled, with respect to issues relating solely to the public interest.”  In connection with their joint motion to terminate, Cargill and ENI asserted that the Settlement Agreement is consistent with the public interest.  The Commission Investigative Staff opposed the motion to terminate, arguing that the Settlement Agreement did not promote the public interest.

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ALJ Essex Issues Initial Determination Terminating Investigation In Certain Active Comfort Footwear (337-TA-660)

By Eric Schweibenz
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Jul
14
On July 13, 2009, ALJ E. James Gildea issued the public version of Order No. 12 in Certain Active Comfort Footwear (337-TA-660).  In the Order, ALJ Gildea granted Complainants Masai Marketing & Trading AC and Masai USA Corp.’s (“Masai”) (1) motion to terminate the Investigation in its entirety by reason of confidential settlement agreement with Respondent RYN Korea Co. Ltd. (“RYN”), and (2) motion to withdrawal its Complaint against the remaining respondents The Tannery (“Tannery”) and A Better Way to Health (“Better Way”).

According to the Order, while Complainants only settled with RYN and not the other named respondents (Tannery and Better Way), Masai requested that the investigation be terminated with respect to all respondents because “RYN is the only producer of the accused products in this Investigation.”  The Commission Investigative Staff supported the termination motion and did not oppose the withdrawal motion.

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ALJ Rogers Issues Initial Determination Terminating Investigation In Certain Lighting Control Devices (337-TA-676)

By Eric Schweibenz
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Jul
15
On July 14, 2009, ALJ Robert K. Rogers, Jr. issued the public version of Order No. 8 in Certain Lighting Control Devices Including Dimmer Switches and Parts Thereof (337-TA-676).  In the Order, ALJ Rogers granted complainant Lutron Electronics Co., Inc. (“Lutron”) and respondent Universal Smart Electric Corp.’s (“Universal”) joint motion to terminate the investigation based on a Consent Order.

In view of the Commission Investigative Staff’s support of the joint motion, an agreement between Lutron and Universal, and the fact that Universal was the sole respondent in this investigation, ALJ Rogers determined that “termination of this investigation is in the public interest and does not impose any undue burdens on the public health and welfare, competitive conditions in the United States economy, the production of like or directly competitive articles in the United States, and United States consumers.”

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ALJ Charneski Issues Stay As To Qimonda AG In Certain Semiconductor Integrated Circuits Using Tungsten Metallization (337-TA-648)

By Eric Schweibenz
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Jul
16
On July 15, 2009, ALJ Carl C. Charneski issued Order No. 110 in Certain Semiconductor Integrated Circuits Using Tungsten Metallization and Products Containing Same (337-TA-648).  In the Order, ALJ Charneski stayed the investigation as to respondent Qimonda AG (“Qimonda”) in view of a July 2, 2009 Order issued by the U.S. Bankruptcy Court for the Eastern District of Virginia (the “Bankruptcy Court”).

In the Order, ALJ Charneski noted that the Bankruptcy Court issued a preliminary injunction ordering that the ITC investigation be stayed with respect to Qimonda “pending a determination on the Recognition Order.” ALJ Charneski further noted that the “Bankruptcy Court’s Order does not extend to any of the other respondents in this investigation” and “the hearing in this investigation will commence on July 20, 2009.”

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ALJ Luckern Issues Public Version Of Enforcement Initial Determination In Certain Ink Cartridges (337-TA-565)

By Eric Schweibenz
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Jul
16
On July 14, 2009, Chief ALJ Paul J. Luckern issued the public version of the April 17, 2009 Enforcement Initial Determination (“ED”) in Certain Ink Cartridges and Components Thereof (337-TA-565).  See our April 21 post.  The underlying investigation was requested by Complainants Seiko Epson Corporation, Epson America, Inc., and Epson Portland Inc. (“Epson”).

The ED found that certain Respondents violated a Limited Exclusion Order, a General Exclusion Order and a Cease and Desist Order issued by the Commission on October 19, 2007.  The Respondents at issue were Ninestar Technology Co. Ltd. and Ninestar Technology Company Ltd. (collectively, “Ninestar”), Town Sky Inc., Mipo International, Ltd. and Mipo America, Ltd. (collectively, “Mipo”), Ribbon Tree (USA) Inc. and Apex Distributing, Inc.

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ALJ Essex Sets Target Date In Certain Course Management System Software Products (337-TA-677)

By Eric Schweibenz
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Jul
21
On July 20, 2009, ALJ Theodore R. Essex issued Order No. 4 in Certain Course Management System Software Products (Inv. No. 337-TA-677) setting the target date for completing the investigation.

According to the Order, ALJ Essex set October 12, 2010 as the target date (which is 16 months after institution of the investigation).  ALJ Essex further indicated that any final initial determination on violation should be filed no later than June 9, 2010.  In addition, ALJ Essex noted that the evidentiary hearing in this matter will commence on February 22, 2010.  In the Order, ALJ Essex also observed that these target and hearing dates might be extended if he grants a currently pending motion to stay the investigation in light of a reexamination proceeding at the U.S. Patent and Trademark Office, and an appellate proceeding before the U.S. Court of Appeals for the Federal Circuit.

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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.