ALJ Rogers

ALJ Rogers Sets Procedural Schedule In Certain Semiconductor Integrated Circuit Devices (337-TA-840)

By Eric Schweibenz
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May
21
Further to our April 27, 2012 and May 4, 2012 posts, on May 17, 2012, ALJ Robert K. Rogers, Jr. issued Order No. 5 in Certain Semiconductor Integrated Circuit Devices and Products Containing Same (Inv. No. 337-TA-840).

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 April 8, 2013; the initial determination on alleged violation shall be due on May 31, 2013; and the target date for completion of the investigation is September 30, 2013 (which is approximately 17 months after institution of the investigation).

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ALJ Rogers Sanctions Kaneka In Certain Coenzyme Q10 Products (337-TA-790)

By Eric Schweibenz
|
May
21
On May 17, 2012, ALJ Robert K. Rogers, Jr. issued Order No. 28 in Certain Coenzyme Q10 Products and Methods of Making Same (Inv. No. 337-TA-790). 

In the Order, ALJ Rogers ordered Complainant Kaneka Corporation (“Kaneka”) to pay $1,692.80 in attorneys’ fees to Respondents Zhejiang Medicine Co., Ltd. (“ZMC”) and ZMC-USA L.L.C. (“ZMC-USA”) in view of Kaneka’s failure to comply with an earlier order.  In that earlier order, ALJ Rogers determined that Kaneka must pay ZMC and ZMC-USA a sum equal to the attorneys’ fees spent on filing a motion to compel and for sanctions and requested that ZMC and ZMC-USA file a detailed accounting of the attorneys’ fees for which they believed that they were entitled.  In response to ALJ Rogers’ request, ZMC and ZMC-USA submited a declaration explaining how much time an attorney responsible for handling the subject motion spent – at his billing rate of $460 per hour.  According to the Order, Kaneka failed to file a timely response to the declaration. 

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

By Eric Schweibenz
|
May
23
On May 21, 2012, ALJ Robert K. Rogers, Jr. issued Order No. 33 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 Action Electronics Co., Ltd. (“Action”) to terminate the investigation based on the entry of a consent order.  Action 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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ALJ Rogers Grants Motion To Exclude In Certain Light-Emitting Diodes (337-TA-802)

By Eric Schweibenz
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May
24
On May 22, 2012, ALJ Robert K. Rogers, Jr. issued the public version of Order No. 14 (dated May 10, 2012) in Certain Light-Emitting Diodes and Products Containing Same (Inv. No. 337-TA-802).  In the Order, ALJ Rogers granted Respondents OSRAM AG, OSRAM Opto Semiconductors GmbH, and OSRAM Sylvania, Inc.’s (collectively, “OSRAM”) motion to exclude certain domestic industry products that Complainants LG Electronics, Inc. and LG Innotek Co. Ltd. (collectively, “LG”) had belatedly identified in a supplemental response to a contention interrogatory.

According to the Order, OSRAM argued that LG’s supplemental response identifying the new domestic industry products was improper and should be stricken.  In particular, OSRAM stated that on March 23, 2012, LG responded to OSRAM’s contention interrogatory concerning domestic industry by identifying a particular light-emitting diode (LED) as the product that practices U.S. Patent Nos. 6,841,802 (the ‘802 patent), 7,649,210 (the ‘210 patent), and 7,956,364 (the ‘364 patent).  On April 11, 2012, LG supplemented its interrogatory response and identified three new LEDs as products that practice the ‘802, ‘210, and ‘364 patents.  On April 16, 2012, LG notified OSRAM that it was no longer relying on the LED that it had originally identified on March 23, 2012.  OSRAM stated that LG offered no sufficient justification for why it had waited until April 11, 2012 to identify the new products, and that OSRAM would be prejudiced if LG were allowed to rely on the new products.

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ALJ Rogers Denies Motion For Reconsideration Or For Leave To Apply For Interlocutory Review In Certain Light-Emitting Diodes (337-TA-802)

By Eric Schweibenz
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Jun
01
On May 21, 2012, ALJ Robert K. Rogers, Jr. issued Order No. 15 in Certain Light-Emitting Diodes and Products Containing Same (Inv. No. 337-TA-802).  In the Order, ALJ Rogers denied Complainants LG Electronics, Inc. and LG Innotek Co. Ltd.’s (collectively, “LG”) motion for leave to apply for interlocutory review of Order No. 14 or, alternatively, for reconsideration of Order No. 14.

By way of background, on March 23, 2012, LG responded to Respondents OSRAM AG, OSRAM Opto Semiconductors GmbH, and OSRAM Sylvania, Inc.’s (collectively, “OSRAM”) contention interrogatory concerning domestic industry by identifying a particular light-emitting diode (LED) as the product that practices U.S. Patent Nos. 6,841,802 (the ‘802 patent), 7,649,210 (the ‘210 patent), and 7,956,364 (the ‘364 patent).  On April 11, 2012, LG supplemented its interrogatory response and identified three new LEDs as products that practice the ‘802, ‘210, and ‘364 patents.  On April 16, 2012, LG notified OSRAM that it was no longer relying on the LED that it had originally identified on March 23, 2012.  On April 23, 2012, OSRAM moved to exclude LG’s April 11, 2012 supplemental response.  On May 10, 2012, ALJ Rogers issued Order No. 14, granting OSRAM’s motion to exclude.  In that Order, the ALJ found that OSRAM’s stated intention to assert an invalidity argument based on LG’s originally-identified LED did not constitute “information thereafter acquired” that would allow for proper supplementation with new domestic industry products under Commission Rule 210.27(c)(1).  See our May 24, 2012 post for more details.

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ALJ Rogers Grants Joint Motions To Terminate Investigation In Certain Portable Communication Devices (337-TA-827)

By Eric Schweibenz
|
Jun
05
On June 1, 2012, ALJ Robert K. Rogers, Jr. issued the public versions of Order Nos. 14 and 15 (both dated May 31, 2012) in Certain Portable Communication Devices (Inv. No. 337-TA-827).

In Order No. 14, ALJ Rogers granted a joint motion filed by Complainant Digitude Innovations, LLC (“Digitude”) and the following respondents to terminate the investigation based on a settlement agreement:

  • Research In Motion Ltd.

  • Research In Motion Corp.

  • LG Electronics, Inc.

  • LG Electronics U.S.A., Inc.

  • LG Electronics MobileComm U.S.A., Inc.

  • Motorola Mobility Holdings, Inc.

  • Samsung Electronics Co., Ltd.

  • Samsung Electronics America, Inc.

  • Samsung Telecommunications America, LLC

  • Sony Corporation

  • Sony Corporation of America

  • Sony Electronics, Inc.

  • Sony Ericsson Mobile Communications AB

  • Sony Ericsson Mobile Communications (USA) Inc.

  • Amazon.com, Inc.

  • Pantech Co. Ltd.

  • Pantech Wireless, Inc.


The order states that in the instant investigation, the motion to terminate is based on a series of agreements between Digitude, RPX Corporation, and the above settling respondents.  After reviewing the confidential and non-confidential versions of the agreements, ALJ Rogers granted the joint motion filed by Digitude and the above respondents.

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ALJ Rogers Sets Target Date In Certain Drill Bits (337-TA-844)

By Eric Schweibenz
|
Jun
13
Further to our May 30, 2012 and June 11, 2012 posts, on June 12, 2012, ALJ Robert K. Rogers, Jr. issued Order No. 6 in Certain Drill Bits and Products Containing the Same (Inv. No. 337-TA-844).

According to the Order, ALJ Rogers set November 4, 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 July 3, 2013.

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ALJ Rogers Precludes Access To Confidential Business Information In Certain Semiconductor Integrated Circuit Devices (337-TA-840)

By Eric Schweibenz
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Jun
15
On June 13, 2012, ALJ Robert K. Rogers, Jr. issued Order No. 8 granting Respondents Intersil Corporation, Zilker Labs LLC, and Techwell LLC’s (collectively, “Respondents”) motion to preclude Complainant Microchip Technology Incorporated (“Microchip”) from providing its expert with access to confidential business information in Certain Semiconductor Integrated Circuit Devices and Products Containing Same(Inv. No. 337-TA-840).

According to the Order, Respondents objected to Microchip’s expert, Dr. Marwan Hassoun, on the grounds that (1) he is involved in two businesses that evaluate intellectual property portfolios, analyze potential infringement, and trade in intellectual property rights in the field of semiconductor technology, and could be in a position to use information he learns about the structure of Respondents’ products to determine whether to purchase or assert a patent in the future that he believes reads on Respondents’ products; and (2) he refused to provide any pertinent details for at least five of his prior expert witness engagements (e.g., name of the case, venue, party retaining him, and general description of his work).  Microchip countered that even if Respondents’ bases for objection were supported by the language of the Protective Order (which Microchip disputed), Dr. Hassoun’s businesses are not related to the subject matter of the investigation, and his curriculum vitae complies with Ground Rule 6.  Further, Microchip responded that nondisclosure agreements prevent Dr. Hassoun from revealing further details for only three of his previous engagements, and that he did not testify as an expert in those cases.

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

By Eric Schweibenz
|
Jun
25
Further to our May 10, 2012 post, on June 11, 2012, ALJ Robert K. Rogers, Jr. issued the public version of the Initial Determination (“ID”) (dated May 10, 2012) in Certain Polyimide Films, Products Containing Same, and Related Methods (Inv. No. 337-TA-772).  Due to its size, we have broken the ID into part 1, part 2, part 3, part 4, part 5, and part 6

By way of background, the Commission instituted this investigation on April 28, 2011.  The Complainant is Kaneka Corporation (“Kaneka”) and the Respondents are SKC Kolon PI, Inc. (“SKPI”) and SKC, Inc. (collectively, “SKC”).  The Commission Investigative Staff (“OUII”) did not participate in the investigation.  See our June 15, 2012 post for more details on the reduction of OUII’s role in Section 337 investigations. 

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ALJ Rogers Rules On Motion For Sanctions In Certain Coenzyme Q10 Products (337-TA-790)

By Eric Schweibenz
|
Jun
26
On June 25, 2012, ALJ Robert K. Rogers, Jr. issued Order No. 48 in Certain Coenzyme Q10 Products and Methods of Making Same (Inv. No. 337-TA-790).  In the Order, ALJ Rogers granted-in-part and denied-in-part Respondent Xiamen Kingdomway Group Company’s (“XKGC”) motion for sanctions against Complainant Kaneka Corporation (“Kaneka”) for Kaneka’s alleged violation of Order No. 22.  See our May 1, 2012 post for more details on Order No. 22.

According to the Order, XKGC stated that Order No. 22 precludes Kaneka from relying on an untimely expert report of Dr. Jeffrey Kittendorf.  XKGC asserted that despite Order No. 22, Dr. Kittendorf’s witness statement includes testimony that discusses in detail the information contained in the untimely expert report.  Moreover, XKGC asserted that certain Kaneka exhibits consist of material that was previously part of Dr. Kittendorf’s untimely expert report.  Accordingly, XKGC requested the following sanctions against Kaneka:  (1) finding that XKGC’s accused process does not infringe any claim of Kaneka’s asserted patent; (2) precluding Kaneka from introducing any of Dr. Kittendorf’s test results into evidence—whether through Dr. Kittendorf or through another Kaneka expert, Dr. Connors; (3) striking Section II.B of Dr. Kittendorf’s witness statement, Section VI of Dr. Connors’s witness statement, and certain exhibits; (4) precluding Kaneka from relying on XKGC confidential processing documents that were the subject of Motion Docket No. 790-028; and (5) ordering Kaneka to pay XKGC’s reasonable expenses, including attorneys’ fees, caused by Kaneka’s violation of Order No. 22.

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ALJ Rogers Sets Procedural Schedule In Certain Drill Bits (337-TA-844)

By Eric Schweibenz
|
Jun
28
Further to our May 30, 2012, June 11, 2012, and June 13, 2012 posts, on June 27, 2012, ALJ Robert K. Rogers, Jr. issued Order No. 8 in Certain Drill Bits and Products Containing the Same(Inv. No. 337-TA-844).

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 May 20, 2013; the initial determination on alleged violation shall be due on July 3, 2013; and the target date for completion of the investigation is November 4, 2013 (which is approximately 17 months after institution of the investigation).

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ALJ Rogers Denies Motion To Compel Plant Inspection and Grants Protective Order In Certain Projectors With Controlled-Angle Optical Retarders (337-TA-815)

By Eric Schweibenz
|
Jul
05
On June 28, 2012, ALJ Robert K. Rogers, Jr. issued the public version of Order No. 11 (dated May 9, 2012) in Certain Projectors with Controlled-Angle Optical Retarders, Components Thereof, and Products Containing Same (Inv. No. 337-TA-815).  In the Order, ALJ Rogers denied Complainant Compound Photonics U.S. Corporation’s (“Compound Photonics”) motion to compel Respondent Sony Corporation (“Sony”) to allow a plant inspection of Sony’s factory in Kosai, Japan.  The ALJ also granted Sony’s motion for a protective order preventing Compound Photonics from inspecting the Kosai factory.

According to the Order, Compound Photonics was seeking a plant inspection of the Sony facility in Japan where Sony assembles the accused projector products.  Compound Photonics asserted that the plant inspection would allow it to gain highly relevant information concerning Sony’s manufacturing process, as the patent claims at issue in the investigation are method claims.  Compound Photonics argued that Sony’s document production had been insufficient, and that the only way to gain a complete understanding of Sony’s process was through a plant inspection.

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ALJ Rogers Grants Motion To Compel Depositions In Certain Projectors with Controlled-Angle Optical Retarders (337-TA-815)

By Eric Schweibenz
|
Jul
06
On June 28, 2012, ALJ Robert K. Rogers, Jr. issued the public version of Order No. 12 (dated May 9, 2012) in Certain Projectors with Controlled-Angle Optical Retarders, Components Thereof, and Products Containing Same (Inv. No. 337-TA-815).  In the Order, ALJ Rogers granted Respondent Sony Corporation’s (“Sony”) motion to compel Complainants Compound Photonics U.S. Corporation and Compound Photonics Ltd. (collectively “Compound Photonics”) to schedule earlier depositions of Compound Photonics representatives and employees.

According to the Order, Sony sought to take the deposition of Complainant’s corporate representatives and ten employees, and the sole issue of the motion related to the timing of the deposition.  Sony complained that it issued the deposition notices in March, but Complainant Compound Photonics proposed to schedule most of the depositions about two weeks prior to the July 27, 2012 deadline for the close of fact discovery, which Sony alleged was prejudicial.  Compound Photonics responded it was unable to provide any witnesses during the entire month of May due to their devoting all of May to development projects making its “pico projector…available for demonstration by mid-2012.”

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ALJ Rogers Denies Motion To Compel In Certain Digital Models, Digital Data, And Treatment Plans For Use In Making Incremental Dental Positioning Adjustment Appliances (337-TA-833)

By Eric Schweibenz
|
Jul
09
On June 28, 2012, ALJ Robert K. Rogers, Jr. issued Order No. 7 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 denied Complainant Align Technology Inc.’s (“Align”) motion to compel Respondent ClearCorrect Operating, LLC (“ClearCorrect”) to produce a document clawed back under a claim of attorney-client privilege. 

According to the Order, ClearCorrect produced several documents to Align on February 20, 2012, including a two-page document containing “a clear, although generic, reference to attorneys.”  While Align claimed that the document was not marked as privileged, “out of an abundance of caution,” Align notified ClearCorrect that that the two-page document was included within the February 20 production.   In response, ClearCorrect stated the document was privileged, inadvertently produced, and demanded its return per Federal Rule of Evidence 502.  Align argued that the document was not privileged, because (i) ClearCorrect had not shown that it was prepared by ClearCorrect’s attorneys for use in this investigation, (ii) ClearCorrect waived privilege by voluntarily producing the document, (iii) even if Federal Rule of Evidence 502 applied, ClearCorrect still waived privilege because it had not shown that it took reasonable steps to prevent disclosure, and (iv) it did not promptly take reasonable steps to rectify the error.  ClearCorrect opposed the motion on the grounds that Align’s motion violated several ground rules, since (i) the parties had expressly agreed not to log privilege documents created or dated after February 2011, and the document at issue was created in February 2012, (ii) an impasse was not declared at the Discovery Committee meeting, and (iii) Align failed to make a good faith effort to resolve the dispute before filing the motion.  As to the substance of the attorney-client privilege, ClearCorrect argued that the document was clearly privileged, since the document was a communication from a client to an attorney to secure legal advice in a legal proceeding, and that the inadvertent production of the document did not constitute a waiver because all elements of Federal Rule of Evidence 502 were met.

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

By Eric Schweibenz
|
Jul
10
On July 9, 2012, ALJ Robert K. Rogers, Jr. issued Order No. 38 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 Transcend Information, Inc. (“Transcend”) to terminate the investigation based on the entry of a consent order.  Transcend 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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ALJ Rogers Issues Initial Determination In Certain Integrated Circuits (337-TA-786)

By Eric Schweibenz
|
Jul
16
On July 12, 2012, ALJ Robert K. Rogers, Jr. issued a notice regarding the Initial Determination on Violation (“ID”) in Certain Integrated Circuits, Chipsets, and Products Containing Same Including Televisions (Inv. No. 337-TA-786). 

By way of background, the investigation is based on a complaint filed by Complainant Freescale Semiconductor, Inc. (“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.  The remaining respondents in this investigation are MediaTek Inc. and Zoran Corp.  

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ALJ Rogers Denies Motion For Summary Determination As Untimely In Certain Digital Photo Frames And Image Display Devices (337-TA-807)

By Eric Schweibenz
|
Jul
24
On July 18, 2012, ALJ Robert K. Rogers, Jr. issued Order No. 40 in Certain Digital Photo Frames and Image Display Devices and Components Thereof (Inv. No. 337-TA-807).  In the Order, ALJ Rogers denied Respondent Pandigital, Inc.’s (“Pandigital”) motion for summary determination of non-infringement and invalidity of U.S. Patent No. 7,162,549 after finding that the motion had not been timely filed. 

According to the Order, the deadline for filing motions for summary determination was July 17, 2012.  The Order states that although Pandigital signed its motion on July 17, 2012, the motion was actually filed at 7:25 p.m. on that date—after the close of business—and was thus not officially received until 8:45 a.m. on July 18, 2012.  Accordingly, ALJ Rogers denied the motion as untimely.

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

By Eric Schweibenz
|
Jul
30
On July 24, 2012, ALJ Robert K. Rogers, Jr. issued the public version of Order No. 40 (dated June 6, 2012) denying respondent Shenzhou Biology & Technology Co., Ltd’s (“Shenzhou”) motion for summary determination of invalidity of U.S. Patent No. 7,910,340 (the ‘340 patent) in Certain Coenzyme Q10 Products and Methods of Making Same (Inv. No. 337-TA-790). 

According to the Order, Shenzhou argued that the ‘340 patent would have been obvious over U.S. Patent No. 3,066,080 (“Folkers”) in view of U.S. Patent No. 3,769,170 (“Kondo”).  Specifically, Shenzhou asserted that (1) an industrial scale process for producing oxidized coenzyme Q10 and using a sealed tank in the extraction process as claimed in the ‘340 patent would have been obvious in view of Folkers and the knowledge of one of ordinary skill in the art; (2) Kondo inherently discloses culturing microbial cells containing reduced coenzyme Q10 at a ratio of not less than 70%; and (3) alternatively, the limitations directed to culturing microbial cells containing reduced coenzyme Q10 at a ratio of not less than 70% cannot be used to distinguish the claims of the ‘340 patent from the prior art because the limitations lack utility.  Shenzhou maintained that one of ordinary skill in the art would have reason or motivation to combine Folkers and Kondo because the latter lists the former as one of the “References Cited” and explains that the strains of fungi, yeast and/or bacteria disclosed in Kondo are capable of producing microbial cells with larger amounts of coenzyme Q10 when compared to the specific strain of microorganism addressed by Folkers.  Complainant Kaneka Corporation (“Kaneka”) countered that Shenzhou’s allegations are high level and fail to address each of the 45 claims it seeks to invalidate, that Shenzhou’s assertions regarding lack of utility are contrary to case law, and that a person of ordinary skill in the art would have no reason or motivation to combined Folkers with Kondo.

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ALJ Rogers Grants-In-Part Motion For Summary Determination Of Non-Infringement In Certain Coenzyme Q10 Products (337-TA-790)

By Eric Schweibenz
|
Jul
30
On July 24, 2012, ALJ Robert K. Rogers, Jr. issued the public version of Order No. 42 (dated June 12, 2012) granting-in-part respondents Zhejiang Medicine Co., Ltd. and ZMC-USA LLC’s (“ZMC”) motion for summary determination of non-infringement of U.S. Patent No. 7,910,340 in Certain Coenzyme Q10 Products and Methods of Making Same(Inv. No. 337-TA-790). 

According to the Order, ZMC argued that its accused process for manufacturing oxidized coenzyme Q10 does not infringe the ‘340 patent because ZMC does not extract coenzyme Q10 under an inert gas atmosphere or in a sealed tank as required by the asserted claims.  Specifically, ZMC contended that (1) the term “inert gas atmosphere” recited in claims 1 and 11 should be construed to mean “an atmosphere of inert gas that is free or substantially free of oxygen,” and (2) the term “sealed tank” in claims 22 and 33 should be interpreted as “a tank that has been closed off to protect the contents of the tank from exposure to air and otherwise prevent the entry or escape of gases during the extraction process.”  Kaneka responded that (1) “inert gas atmosphere” means “a gas atmosphere that is less readily reactive with the organic solvent,” and that ZMC’s process meets the “inert gas atmosphere” limitation under either party’s construction; and (2) “sealed tank” means “a tank that substantially prevents direct exposure of its contents to the atmosphere.”

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