ALJ Rogers

ALJ Rogers Denies Motion To Modify Procedural Schedule In Certain Integrated Circuits (337-TA-786)

By Eric Schweibenz
|
Apr
06
On April 2, 2012, ALJ Robert K. Rogers, Jr. issued Order No. 24 in Certain Integrated Circuits, Chipsets, And Products Containing Same Including Televisions(Inv. No. 337-TA-786) denying Respondent Zoran Corporation’s (“Zoran”) motion to modify the procedural schedule to extend the deadline to file a motion for summary determination. 

By way of background, on July 19, 2011, Respondents Funai Electric Co., Ltd. and Funai Corporation, Inc. (collectively, “Funai”) filed a motion for summary determination that Complainant Freescale Semiconductor, Inc’s (“Freescale”) allegations against Funai were precluded based on the finding of no Section 337 violation in Inv. No. 337-TA-709 (the “709 investigation”).  On August 29, 2011, ALJ Rogers granted Funai’s motion in part, determining that “Freescale’s allegations of infringement against Funai are precluded with respect to Funai products that contain a specified list of integrated circuits.”  On October 13, 2011, the Commission determined to review the ALJ’s findings and, on February 7, 2012, affirmed the ALJ’s determination that “Freescale’s claims against Funai products including an identified Zoran chip are precluded based on the ‘essentially the same’ test” from Acumed LLC v. Stryker Corp., 525 F.3d 1319, 1324 (Fed. Cir. 2008).  Subsequently, on March 21, 2012, the Commission clarified its Order stating that its affirmance of the ALJ’s findings “extends only to Funai’s products containing the Zoran chips indicated in the ID and in the Commission’s remand Order,” and that “Zoran is not prohibited from further pursuing the issue of preclusion with respect to Freescale’s claims against its standalone chips.” 

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ALJ Rogers Rules On Motion To Quash Subpoena In Certain Devices for Mobile Data Communication (337-TA-809)

By Eric Schweibenz
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Apr
10
On April 4, 2012, ALJ Robert K. Rogers, Jr. issued the public version of Order No. 16 (dated February 8, 2012) granting-in-part and denying-in-part nonparty AT&T Mobility LLC’s (“AT&T”) motion to quash and/or limit the subpoena served by Complainant Openwave Systems, Inc. (“Openwave”) in Certain Devices for Mobile Data Communication (Inv. No. 337-TA-809). 

The investigation is based on a complaint filed by Openwave alleging violation of Section 337 in the importation into the U.S. and sale of certain allegedly infringing devices for mobile data communication.  See our September 1, 2011 post for more details.

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ALJ Rogers Denies Motion For Summary Determination Of Domestic Industry In Certain Integrated Circuits (337-TA-786)

By Eric Schweibenz
|
Apr
11
On April 4, 2012, ALJ Robert K. Rogers, Jr. issued the public version of Order No. 19 (dated February 15, 2012) in Certain Integrated Circuits, Chipsets, And Products Containing Same Including Televisions (Inv. No. 337-TA-786).  The Order denied Complainant Freescale Semiconductor, Inc.’s (“Freescale”) motion for summary determination that it satisfies the domestic industry requirement of Section 337 due to its licensing activities.  The Order also denied Respondents’ motion for leave to file their response to Freescale’s motion out of time.

By way of background, on January 30, 2012, Freescale filed a motion for summary determination that it satisfies the domestic industry requirement and, on February 9, 2012, the Commission Investigative Staff (“OUII”) filed a response supporting the motion.  Due to various computer errors, Respondents Zoran Corporation, MediaTek, Inc., Funai Electric Co. Ltd., and Funai Corporation (collectively “Respondents”) did not file a timely response to Freescale’s motion and sought leave to file their response one day late.

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ALJ Rogers Denies Motion For Summary Determination In Certain Integrated Circuits (337-TA-786)

By Eric Schweibenz
|
Apr
11
On April 4, 2012, ALJ Robert K. Rogers, Jr. issued the public version of Order No. 20 (dated February 27, 2012) in Certain Integrated Circuits, Chipsets, And Products Containing Same Including Televisions  (Inv. No. 337-TA-786) denying Respondents Funai Electric Co., Ltd. and Funai Corporation, Inc.’s (collectively “Funai”) motion for summary determination. 

By way of background, on July 19, 2011, Funai filed a motion for summary determination that Complainant Freescale Semiconductor, Inc.’s (“Freescale”) allegations against Funai were precluded based on the finding of no Section 337 violation in Inv. No. 337-TA-709 (“the 709 Investigation”).  On August 29, 2011, ALJ Rogers granted Funai’s motion in part, determining that “Freescale’s allegations of infringement against Funai are precluded with respect to Funai products that contain a specified list of integrated circuits.”  On October 13, 2011, the Commission determined to review the ALJ’s findings and, on February 7, 2012, affirmed the ALJ’s determination that “Freescale’s claims against Funai products including an identified Zoran chip are precluded based on the ‘essentially the same’ test” from Acumed LLC v. Stryker Corp., 525 F.3d 1319, 1324 (Fed. Cir. 2008).  See our April 6, 2012 post for more details.  The Commission’s February 7th Order also remanded a portion of the Order to ALJ Rogers “to determine whether the accused MediaTek chips are ‘essentially the same’ as the eleven adjudicated Zoran chips in [the 709 Investigation] by applying the test as articulated in Acumed.”  Accordingly, on February 13, 2012, both Funai and the Commission Investigative Staff (“OUII”) filed briefs arguing that the “MediaTek chips are ‘essentially the same’ as the eleven adjudicated Zoran chips” and, on February 17, 2012, Freescale filed an opposition motion.  “If the accused MediaTek chips are found to be ‘essentially the same’ as the eleven adjudicated Zoran chips, Freescale is precluded from asserting that Funai products containing the accused MediaTek chips infringe U.S. Patent No. 5,467,455 (“the ‘455 patent”).”

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ALJ Rogers Rules on Motion to Compel in Certain Integrated Circuits (337-TA-786)

By Eric Schweibenz
|
Apr
12
On April 10, 2012, ALJ Robert K. Rogers, Jr. issued Order No. 26 in Certain Integrated Circuits, Chipsets, and Products Containing Same Including Televisions(Inv. No. 337-TA-786) granting Complainant Freescale Semiconductor, Inc.’s (“Freescale”) motion to compel respondent MediaTek Inc. (“MediaTek”) to reconvene the deposition of its corporate witness.

By way of background, the investigation is based on a complaint filed by Freescale alleging violation of Section 337 in the importation into the U.S., sale for importation, and/or sale within the U.S. after importation of certain integrated circuits, integrated circuit chipsets, and products containing the same, including televisions, that infringe one or more claims of U.S. Patent No. 5,467,455.  See our December 2, 2011 post for more details.  

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ALJ Rogers Rules On Motion To Compel In Certain Integrated Circuits (337-TA-786)

By Eric Schweibenz
|
Apr
12
On April 4, 2012, ALJ Robert K. Rogers, Jr. issued the public version of Order No. 17 (dated February 9, 2012) denying Complainant Freescale Semiconductor, Inc.’s (“Freescale”) motion to compel in Certain Integrated Circuits, Chipsets, And Products Containing Same Including Televisions  (Inv. No. 337-TA-786).

According to the Order, Freescale moved to compel Respondent MediaTek, Inc. (“MediaTek”) to produce sales orders responsive to certain document requests.  Freescale argued that MediaTek had only produced a small sample of its sales orders despite being highly relevant to the issue of importation and not unduly burdensome to produce.  Freescale also requested an order requiring MediaTek to sit for any necessary follow-up depositions in the United States.  MediaTek countered by arguing that the documents sought by Freescale are “cumulative of information that MediaTek provided in interrogatory responses.”  In any case, MediaTek agreed to make the sales orders available for inspection and copying, and a witness available for deposition, in Taiwan.

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ALJ Rogers Denies Motion To Terminate Investigation In Certain Integrated Circuits (337-TA-786)

By Eric Schweibenz
|
Apr
12
On April 6, 2012, ALJ Robert K. Rogers, Jr. issued Order No. 25 in Certain Integrated Circuits, Chipsets, And Products Containing Same Including Televisions (Inv. No. 337-TA-786).

In the Order, ALJ Rogers denied a joint motion filed by Complainant Freescale Semiconductor, Inc. and Respondents Funai Electric Co., Ltd. and Funai Corporation, Inc. (collectively, “Funai”) to terminate the investigation based on the entry of a consent order. 

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ALJ Rogers Denies Motion To Supplement Notice Of Prior Art In Certain Coenzyme Q10 Products (337-TA-790)

By Eric Schweibenz
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Apr
19
On April 3, 2012, ALJ Robert K. Rogers, Jr. issued Order No. 21 denying Respondents Mitsubishi Gas Chemical Company, Inc., Mitsubishi Gas Chemical America, Inc., Zhejiang Medicine Co., Ltd., ZMC-USA LLC, Xiamen Kingdomway Group Company, Pacific Rainbow International Inc., Shenzhou Biology & Technology Co., Ltd., and Maypro Industries, LLC’s (collectively, the “Respondents”) motion to supplement their notices of prior art in Certain Coenzyme Q10 Products and Methods of Making Same (Inv. No. 337-TA-790).

According to the Order, Respondents sought to add an article that was uncovered in a relatively obscure publication directed to medical personnel, arguing that (i) the reference was found after the deadline for filing notices of prior art had passed despite diligent prior art searching in both the United States and Japan that began in July 2011, and (ii) Complainant Kaneka Corporation would not be prejudiced as a result.  Citing Ground Rule 5 and his comments at the preliminary conference that an expert’s inability to find references is not adequate to show good cause for filing late notices of prior art, ALJ Rogers found that Respondents failed to demonstrate the good cause necessary for amending their notices of prior art.

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ALJ Rogers Grants-In-Part Motion To Compel In Certain Coenzyme Q10 Products (337-TA-790)

By Eric Schweibenz
|
Apr
26
On April 19, 2012, ALJ Robert K. Rogers, Jr. issued the public version of Order No. 16 (dated March 20, 2012) granting-in-part Respondent Xiamen Kingdomway Group Company’s (“XKGC”) motion to compel discovery from Complainant Kaneka Corporation (“Kaneka”) in Certain Coenzyme Q10 Products and Methods of Making Same (Inv. No. 337-TA-790).

According to the Order, XKGC sought (1) a Kaneka deponent knowledgeable about pre-2002 sales of coenzyme Q10; (2) documents responsive to requests for purchase orders, invoices and shipping records related to Kaneka’s pre-2002 sales, and answers to interrogatories seeking identification of the requested documents; and (3) proper responses to document requests and interrogatories relating to Kaneka’s pre-2002 technical standard covering its process for extracting, purifying and oxidizing coenzyme Q10.

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ALJ Rogers Grants-In-Part Motion To Strike Expert Report In Certain Integrated Circuits (337-TA-786)

By Eric Schweibenz
|
Apr
26
On April 19, 2012, ALJ Robert K. Rogers, Jr. issued the public version of Order No. 21 (dated March 7, 2012) granting-in-part Respondent MediaTek, Inc.’s (“MediaTek”) motion to strike sections of Complainant Freescale Semiconductor, Inc.’s (“Freescale”) initial expert report and preclude Freescale from offering certain evidence and argument at trial in Certain Integrated Circuits, Chipsets, and Products Containing Same Including Televisions (Inv. No. 337-TA-786).

According to the Order, MediaTek asserted that Freescale took the position in the parties’ Joint Claim Construction Statement that the “a conductor…” limitation in claim 9 of the patent at issue needed no construction, but then submitted an initial expert report containing a newly proposed construction of this limitation.  Thus, MediaTek argued that the sections of Freescale’s expert report relying on the new construction of “a conductor…” should be stricken.  MediaTek also sought to strike allegedly new infringement arguments raised in Freescale’s expert report, asserting that Freescale’s expert identified a series of new signals that meet the “control signal” limitation of claim 9 that were not identified in Freescale’s contention interrogatory.

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ALJ Rogers Rules On Motion To Compel In Certain Light-Emitting Diodes (337-TA-802)

By Eric Schweibenz
|
Apr
27
On April 19, 2012, ALJ Robert K. Rogers, Jr. issued the public version of Order No. 12 (dated March 14, 2012) denying Respondents’ OSRAM AG, OSRAM Opto Semiconductors GmbH, and OSRAM Sylvania, Inc.’s (collectively “OSRAM”) motion to compel in Certain Light-Emitting Diodes and Products Containing Same (Inv. No. 337-TA-802).

According to the Order, OSRAM moved to compel Complainants LG Electronics, Inc. and LG Innotek Co. Ltd. (collectively “LG”) to produce licensing-related information responsive to OSRAM’s Requests for Production Nos. 22 and 111.  Specifically, OSRAM sought production of “[a]ll documents concerning LG’s licensing of the Patents-In-Suit,” and “[a]ll documents concerning any licensing or sublicensing agreement for any of LG’s intellectual property rights concerning the Accused Products, including without limitation the Patents-In-Suit and any technology embodied therein… .”  OSRAM argued that the requested documents are “relevant to determining: (1) the appropriate bond and (2) the validity of the asserted patents.”  OSRAM also asserted that LG’s sole argument against production, that its licensing-related documents are not relevant because “LG does not intend to rely on licensing activities to prove domestic industry,” has been expressly rejected in other investigations.  LG’s arguments in rebuttal were largely redacted from the public version of the Order.

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ALJ Rogers Grants Motion To Terminate Investigation As To Audiovox In Certain Digital Photo Frames And Image Display Devices (337-TA-807)

By Eric Schweibenz
|
Apr
27
On April 24, 2012, ALJ Robert K. Rogers, Jr. issued the public version of Order No. 28 in Certain Digital Photo Frames And Image Display Devices and Components Thereof (Inv. No. 337-TA-807).

In the Order, ALJ Rogers granted a joint motion filed by Complainant Technology Properties Limited LLC and Respondent Audiovox Corporation to terminate the investigation based on a settlement agreement. 

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ALJ Rogers Sets Procedural Schedule In Certain Digital Models, Digital Data, And Treatment Plans For Use In Making Incremental Dental Positioning Adjustment Appliances (337-TA-833)

By Eric Schweibenz
|
Apr
27
Further to our April 6, 2012 post, on April 26, 2012, ALJ Robert K. Rogers, Jr. issued Order No. 5 in Certain Digital Models, Digital Data, And Treatment Plans For Use In Making Incremental Dental Positioning Adjustment Appliances, The Appliances Made Therefrom, and Methods Of Making The Same (Inv. No. 337-TA-833).

In the Order, ALJ Rogers set the procedural schedule for the investigation and included provisions for the early exchange of claim construction terms and proposed constructions.  The procedural schedule also provides that the evidentiary hearing in this investigation will commence on February 4, 2013; the initial determination on alleged violation shall be due on May 6, 2013; and the target date for completion of the investigation is September 4, 2013 (which is approximately 18 months after institution of the investigation).

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ALJ Rogers Grants Motion To Strike Expert Report In Certain Coenzyme Q10 Products (337-TA-790)

By Eric Schweibenz
|
May
01
On April 27, 2012, ALJ Robert K. Rogers, Jr. issued Order No. 22 in Certain Coenzyme Q10 Products and Methods of Making Same (Inv. No. 337-TA-790).  In the Order, ALJ Rogers granted a motion filed by Respondent Xiamen Kingdomway Group Company (“XKGC”) to strike the expert report of Dr. Jeffrey D. Kittendorf submitted on behalf of Complainant Kaneka Corporation (“Kaneka”). 

According to the Order, XKGC filed the motion to strike Dr. Kittendorf’s expert report because it was submitted approximately four days after the deadline set forth in the procedural schedule.  In response to the motion, Kaneka acknowledged that Dr. Kittendorf’s expert report was not served in a timely manner due to a clerical error.  Specifically, Kaneka explained that Dr. Kittendorf’s expert report was supposed to be an exhibit to one of the reports timely submitted by another expert, Dr. Neal Connors.  Kaneka argued that it would be improper to strike Dr. Kittendorf’s report due to a clerical error that caused no real prejudice to XKGC and should not otherwise prevent Kaneka from presenting scientific testing that goes to the substantive issues in this investigation.

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ALJ Rogers Denies Motion To Disqualify In Certain Light-Emitting Diodes (337-TA-798)

By Eric Schweibenz
|
May
02
On April 27, 2012, ALJ Robert K. Rogers, Jr. issued the public version of Order No. 19 (dated January 26, 2012) denying Complainant Samsung LED Co., Ltd.’s (“Samsung”) motion to disqualify Respondents OSRAM AG, OSRAM Opto Semiconductors GmbH, OSRAM Opto Semiconductors Inc., and OSRAM Sylvania Inc.’s (collectively “OSRAM”) expert witness, Dr. Wetzel, and bar his access to confidential business information in Certain Light-Emitting Diodes and Products Containing Same (Inv. No. 337-TA-798).

According to the Order, Samsung’s motion to disqualify was based on Dr. Wetzel’s employment with Rensselaer Polytechnic Institute (“RPI”) and his involvement with “RPI’s Future Chip Constellation Group and Lighting Research Center,” of which OSRAM is a member.  Samsung also asserted that Dr. Wetzel should be denied access to Samsung’s confidential business information because his consulting and professional relationship with OSRAM and RPI’s Partner’s Program creates a high risk that Samsung’s confidential information will be used inappropriately.  In response, OSRAM stated that Samsung’s argument was “entirely speculative,” and that Samsung “failed to demonstrate that Dr. Wetzel actually received any confidential information… .” 

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ALJ Rogers Sets 17-Month Target Date In Certain Semiconductor Integrated Circuit Devices (337-TA-840)

By Eric Schweibenz
|
May
04
Further to our April 27, 2012 post, on May 2, 2012, ALJ Robert K. Rogers, Jr. issued Order No. 4 in Certain Semiconductor Integrated Circuit Devices and Products Containing Same (Inv. No. 337-TA-840).

According to the Order, ALJ Rogers set September 30, 2013 as the target date (which is 17 months after institution of the investigation).  ALJ Rogers further indicated that the initial determination on alleged violation shall be due on May 31, 2013.

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ALJ Rogers Denies Motion for Summary Determination In Certain Coenzyme Q10 Products (337-TA-790)

By Eric Schweibenz
|
May
07
On April 27, 2012, ALJ Robert K. Rogers, Jr. issued the public version of Order No. 13 (dated February 14, 2012) in Certain Coenzyme Q10 Products and Methods of Making Same (Inv. No. 337-TA-790).  In the Order, ALJ Rogers denied a motion filed by Respondent Mitsubishi Gas Chemical Co., Ltd. (“MGC”) for summary determination.  Complainant Kaneka Corporation (“Kaneka”) and the Commission Investigative Staff (“OUII”) opposed the motion. 

According to the Order, in its motion for summary determination, MGC originally sought a ruling on eight specified issues regarding claim construction, invalidity, and non-infringement. However, MGC’s reply brief conceded that for six of these eight issues, disputed facts precluded summary determination.  Thus, the ALJ determined to only address the two remaining issues: (1) MGC’s argument that prosecution history estoppel bars a finding of infringement under the doctrine of equivalents, and (2) MGC’s assertions regarding material undisputed facts.

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ALJ Rogers Denies Motion To Subscribe To Protective Order And Attend Evidentiary Hearing In Certain Integrated Circuits (337-TA-786)

By Eric Schweibenz
|
May
10
On May 8, 2012, ALJ Robert K. Rogers, Jr. issued Order No. 30 in Certain Integrated Circuits, Chipsets, and Products Containing Same Including Televisions (Inv. No. 337-TA-786).  In the Order, ALJ Rogers denied MediaTek Inc., Zoran Corp., VIZIO, Inc., AmTran Technology Co., Ltd., AmTran Logistics, Inc., Sanyo Electric Co., Ltd., Sanyo North America Corp., Sanyo Manufacturing Corp., TPV International (USA) Inc., Top Victory Electronics (Taiwan) Co., Ltd., Top Victory Electronics (Fujian) Co., Ltd., and Envision Peripherals, Inc.’s (collectively, the “822 Respondents”) motion to permit their counsel to subscribe to the Protective Order in the 786 investigation and attend the evidentiary hearing in the 786 investigation commencing on May 23, 2012.  The 822 Respondents are all Respondents in Certain Integrated Circuits, Chipsets, and Products Containing Same Including Televisions (Inv. No. 337-TA-822).  See our January 9, 2012 post for more details on the 822 investigation.  The Commission Investigative Staff opposed the motion.

According to the Order, the 822 Respondents requested that their counsel be allowed to subscribe to the Protective Order in the 786 investigation in order to be allowed access to certain Confidential Business Information.  In particular, the 822 Respondents contended that “[g]ood cause exists to permit the 822 Respondents access to Confidential Business Information because the allegations of infringement against them in the 822 Investigation are essentially identical to allegations of infringement against respondents in this Investigation and because doing so will increase efficiency for the Administrative Law Judge and for the parties.” 

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ALJ Rogers Issues Notice Of Initial Determination In Certain Polyimide Films (337-TA-772)

By Eric Schweibenz
|
May
10
On May 10, 2012, ALJ Robert K. Rogers, Jr. issued a notice regarding the Initial Determination on Violation (“ID”) in Certain Polyimide Films, Products Containing Same, and Related Methods (Inv. No. 337-TA-772).

By way of background, the Complainant in this matter is Kaneka Corporation of Japan and the Respondents are SKC Kolon PI, Inc. of South Korea and SKC Inc. of Covington, Georgia (collectively, “SKC”).

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ALJ Rogers Grants Motion To Terminate Investigation As To Digital Spectrum Solutions In Certain Digital Photo Frames And Image Display Devices (337-TA-807)

By Eric Schweibenz
|
May
11
On May 10, 2012, ALJ Robert K. Rogers, Jr. issued Order No. 32 in Certain Digital Photo Frames And Image Display Devices and Components Thereof (Inv. No. 337-TA-807).

In the Order, ALJ Rogers granted a motion filed by Respondent Digital Spectrum Solutions, Inc. (“DSI”) to terminate the investigation based on the entry of a consent order.  DSI represented that it contacted all of the remaining parties in this investigation and that no party opposed its motion.  Accordingly, ALJ Rogers granted the motion. 

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