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ALJ Rogers

ALJ Rogers Denies Summary Determination Motions Regarding Invalidity and Inequitable Conduct in Certain Electronic Devices (337-TA-673/667)

By Eric Schweibenz
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Nov
18
On November 17, 2009, ALJ Robert K. Rogers, Jr. issued the public version of Order No. 47C (dated October 14, 2009).  The order denied summary determination motions filed by Complainant Saxon Innovations, LLC (“Saxon”) and Respondents Samsung Electronics Co., Ltd., Samsung Electronics America, Inc., and Samsung Telecommunications America, LLP (collectively, “Samsung”) in Certain Electronic Devices, Including Handheld Wireless Communications Devices (Inv. No. 337-TA-667/673).

Both parties filed motions for summary determination on August 25, 2009.  Saxon’s motion sought a determination that U.S. Patent No. 5,608,873 (the ‘873 patent) was not invalid under 35 U.S.C. § 102(e) and was not unenforceable due to inequitable conduct.  Samsung filed a motion seeking summary determination that the ‘873 patent was unenforceable due to inequitable conduct.

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ALJ Rogers Releases Public Version of Initial Determination Granting Saxon’s Summary Determination Motion Regarding The Economic Prong Of The Domestic Industry Requirement In Certain Electronic Devices (337-TA-667/673)

By Eric Schweibenz
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Nov
19
Further to our November 17 post, where we reported that the International Trade Commission issued a notice determining not to review ALJ Robert K. Rogers, Jr.’s October 15, 2009 Initial Determination (“ID”) granting Complainant Saxon Innovations, LLC’s (“Saxon”) motion for summary determination that it has met the economic prong of the domestic industry requirement in Certain Electronic Devices, Including Handheld Wireless Communications Devices (Inv. No. 337-TA-667/673), the public version of the October 15 ID was released on November 18.

According to the ID, Saxon filed a motion for summary determination that it has met the economic prong of the domestic industry requirement based on the activities of its licensee, Motorola, Inc., pursuant to 19 U.S.C. § 1337(a)(3)(C).  Respondents Samsung Electronics Co., Ltd., Samsung Electronics America, Inc., and Samsung Telecommunications America, LLP (collectively, “Samsung”), Research In Motion, Ltd. and Research In Motion Corp. (collectively, “RIM”, no longer a party to the investigation based on a settlement agreement), and Palm, Inc. (“Palm”) filed a joint response opposing the motion.  In addition, Samsung and RIM filed a joint motion for summary determination of no violation based upon Saxon’s failure to satisfy the economic prong of the domestic industry requirement.  The Commission Investigative Staff filed a combined response to the parties’ motions and supported Saxon’s position that it satisfied the economic prong as a matter of law due to substantial investments in relevant technology made by Saxon’s licensee, Motorola.

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ALJ Rogers Denies Motion For Summary Determination Of Invalidity In Certain Bulk Welding Wire Containers (337-TA-686)

By Eric Schweibenz
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Nov
19
On November 17, 2009 ALJ Robert K. Rogers, Jr. issued Order No. 13: Denying Respondent Sidergas SpA’s (“Sidergas”) Motion for Summary Determination of Invalidity of Claims 3, 4, 6, 12, & 13 of U.S. Patent No. 6,708,864 (the ‘864 patent) in Certain Bulk Welding Wire Containers and Components Thereof and Welding Wire (Inv. No. 337-TA-686).

According to the Order, Sidergas filed its summary determination motion on October 27, 2009.  Further, Complainants Lincoln Electric Company and Lincoln Global, Inc. (collectively “Lincoln”) as well as the Commission Investigative Staff filed responses on November 6, 2009 opposing the motion.  In addition, Respondents Atlantic China Welding Consumables, Inc., ESAB AB, Hyundai Welding Co., Ltd., and Kiswel Ltd. filed a joint response on November 6, 2009 in support of Sidergas’ motion.

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ALJ Rogers Denies Motion For Summary Determination Of Invalidity In Certain Bulk Welding Wire Containers (337-TA-686)

By Eric Schweibenz
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Nov
19
On November 18, 2009 ALJ Robert K. Rogers, Jr. issued Order No. 14 denying respondent Sidergas SpA’s (“Sidergas”) motion for summary determination of invalidity of claim 1 of U.S. Patent No. 6,260,781 (the ‘781 patent) in Certain Bulk Welding Wire Containers and Components Thereof and Welding Wire (Inv. No. 337-TA-686).

According to the Order, Sidergas filed its summary determination motion on October 27, 2009.  Complainants Lincoln Electric Company and Lincoln Global, Inc. (collectively “Lincoln”) and the Commission Investigative Staff filed responses on November 6, 2009 opposing the motion.  In addition, respondents Atlantic China Welding Consumables, Inc., ESAB AB, Hyundai Welding Co., Ltd., and Kiswel Ltd. filed a joint response on November 6, 2009 in support of Sidergas’ motion.  On November 12, 2009, Sidergas filed a motion for leave to file a reply in support of its motion, which was denied.

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ALJ Rogers Grants Motion to Strike Inequitable Conduct Defense In Certain Bulk Welding Wire Containers (337-TA-686)

By Eric Schweibenz
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Dec
10
On December 7, 2009, ALJ Robert K. Rogers, Jr. issued Order No. 21 in Certain Bulk Welding Wire Containers and Components Thereof and Welding Wire (Inv. No. 337-TA-686).  In the Order, ALJ Rogers granted-in-part and denied-in-part a motion filed by Complainants The Lincoln Electric Company and Lincoln Global, Inc. (collectively, “Lincoln”) to strike the Seventh Affirmative Defense of Respondent Sidergas SpA (“Sidergas”).

In support of its motion, Lincoln argued that the inequitable conduct defense set forth in Sidergas’ response to Lincoln’s complaint was inadequate under the Federal Circuit’s recent decision in Exergen Corp. v. Wal-Mart Stores, Inc., 575 F.3d 1312 (Fed. Cir. 2009), because Sidergas “fail[ed] to include sufficient detail to meet the heightened pleading standard of Fed. R. Civ. P. 9(b).”  In opposition, Sidergas argued that its inequitable conduct pleading satisfied the standard in Exergen and that Lincoln’s motion should be denied because it sought to strike other claims that were raised simultaneously with Sidergas’ inequitable conduct claim, including patent misuse, fraud on the U.S. Patent and Trademark Office, and infectious unenforceability.  Alternatively, Sidergas argued that if its pleading was deficient it should be afforded the opportunity to add sufficient detail.  The Commission Investigative Staff opposed Lincoln’s motion stating that Lincoln failed to demonstrate that Sidergas’ inequitable conduct defense did not comply with Commission Rule 210.13(b), and that Sidergas should be given the opportunity to amend its pleading to satisfy any alleged deficiencies.

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Update Regarding Certain Silicon Microphone Packages (337-TA-695)

By Eric Schweibenz
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Dec
21

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ALJ Rogers Designates Investigation More Complicated And Sets Hearing Date On Motion For Temporary Relief In Certain Silicon Microphone Packages (337-TA-695)

By Eric Schweibenz
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Dec
23
On December 18, 2009, ALJ Robert K. Rogers, Jr. issued Order No. 4: Designating Investigation “More Complicated” in Certain Silicon Microphone Packages and Products Containing the Same (Inv. No. 337-TA-695).

By way of background, the Complainant in this investigation is Knowles Electronics LLC (“Knowles”) and the Respondent is Analog Devices Inc.  The investigation is based on a November 12, 2009 complaint and motion for temporary relief as well as a December 1, 2009 letter supplementing the complaint filed by Knowles.  Knowles’ complaint and motion for temporary relief allege violation of Section 337 in the importation into the U.S. and sale of certain silicon microphone packages and products containing the same which allegedly infringe U.S. Patent Nos. 6,781,231 and 7,242,089.  See our November 13, 17, and December 18 and 21 posts for more details.

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ALJ Rogers Denies Motion To Preclude Respondents From Relying On Prior Art In Certain Bulk Welding Wire Containers (337-TA-686)

By Eric Schweibenz
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Dec
31
On December 28, 2009, ALJ Robert K. Rogers, Jr. issued Order No. 25 in Certain Bulk Welding Wire Containers and Components Thereof and Welding Wire (Inv. No. 337-TA-686).  In the Order, ALJ Rogers denied Complainants The Lincoln Electric Company and Lincoln Global, Inc.’s (collectively, “Lincoln”) motion to preclude Respondents Kiswel Co., Ltd. (“Kiswel”), Atlantic China Welding Consumables, Inc. (“Atlantic”), The ESAB Group, Inc. (“ESAB”), and Sidergas SpA (“Sidergas”) from relying on prior art not specified in their prior art notices.

While Kiswel and Atlantic were included in the motion, Lincoln’s argument in its accompanying memorandum focused solely on ESAB and Sidergas.  Specifically, Lincoln argued that the prior art notices filed by ESAB and Sidergas were deficient under the Ground Rules for the investigation because they did not include sufficient detail about alleged invalidating prior use of the claimed invention by ESAB and Sidergas.

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ITC Institutes Investigation (337-TA-700) Regarding Certain MEMS Devices

By Eric Schweibenz
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Jan
04
On December 31, 2009, the U.S. International Trade Commission issued a press release announcing that it voted to institute an investigation of Certain MEMS Devices and Products Containing Same (Inv. No. 337-TA-700).

The investigation is based on a December 1, 2009 complaint, a December 9, 2009 supplement to the complaint, and a December 22, 2009 amendment to the complaint filed by Analog Devices, Inc. of Norwood, Massachusetts.  The complaint alleges violation of Section 337 in the importation into the U.S. and sale of certain MEMS devices and products containing the same which allegedly infringe certain claims of U.S. Patent Nos. 7,220,614 and 7,364,942.  See our December 3, 2009 post for more details.

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ALJ Rogers Sets Procedural Schedule And Target Date In Certain Silicon Microphone Packages (337-TA-695)

By Eric Schweibenz
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Jan
04
On December 30, 2009, ALJ Robert K. Rogers, Jr. issued Order No. 5:  Setting Procedural Schedule and Order No. 6:  Setting Target Date in Certain Silicon Microphone Packages and Products Containing the Same (Inv. No. 337-TA-695).

In Order No. 5, ALJ Rogers sets the procedural schedule for the investigation (Exhibit A) and includes provisions for the early exchange of claim construction terms and proposed constructions.  The procedural schedule also indicates that the evidentiary hearing in this investigation will commence on July 7, 2010.  Order No. 5 also includes a procedural schedule in connection with Complainant Knowles Electronics LLC’s (“Knowles”) motion for temporary relief (Exhibit B).  According to Exhibit B, the hearing regarding Knowles’ motion for temporary relief will commence on February 17, 2010.

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ALJ Rogers Denies Motion to Preclude Respondents From Relying On Prior Art Not Produced In Certain Bulk Welding Wire Containers (337-TA-686)

By Eric Schweibenz
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Jan
06
On January 4, 2010, ALJ Robert K. Rogers, Jr. issued Order No. 26 in Certain Bulk Welding Wire Containers and Components Thereof and Welding Wire (Inv. No. 337-TA-686).  In the Order, ALJ Rogers denied Complainants The Lincoln Electric Company and Lincoln Global, Inc.’s (collectively, “Lincoln”) motion to preclude Respondents The ESAB Group, Inc. (“ESAB”), and Sidergas SpA (“Sidergas”) (collectively, “Respondents”) from relying on any prior art that has not been produced, or alternatively, to compel Respondents to produce prior art.

In support of the motion, Lincoln asserted that Respondents “failed to timely produce all relevant documents related to the prior art that [Respondents] seek to rely on in this investigation.”  In particular, Lincoln noted that Sidergas failed to make its prior art bulk welding wire containers, that are available for inspection in Italy, also available for inspection in Washington, D.C., and that ESAB failed to timely provide discovery responses on December 7, 2009.

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ALJ Rogers Denies Motion To Disqualify Counsel In Certain Printing And Imaging Devices And Components Thereof (337-TA-690)

By Eric Schweibenz
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Jan
12
On January 11, 2010, ALJ Robert K. Rogers, Jr. issued the public version of Order No. 10 (dated December 10, 2009) in Certain Printing and Imaging Devices and Component Thereof (Inv. No. 337-TA-690) denying Complainants Ricoh Company, Ltd. and Ricoh Electronics, Inc.’s (collectively “Ricoh”) motion to disqualify the law firm of Nagashima & Hashimoto (“N&H”) from representing Respondents Oki Data Corporation and Oki Data Americas, Inc. (collectively “Oki Data”).

In support of its motion, Ricoh asserted that N&H’s representation of Oki Data in the investigation violated ABA Model Rules 1.7 and 1.9 regarding concurrent and former representation, respectively.  In particular, Ricoh asserted that Mr. Nagashima, an attorney affiliated with the law firm, “has been Ricoh’s lawyer handling patent, licensing, and antitrust matters and now seeks to represent Oki Data in a matter where he would be directly adverse to Ricoh” and that Mr. Nagashima’s work for Ricoh is substantially related to his current representation of Oki Data.  In opposition, Oki Data asserted that Ricoh consented to Mr. Nagashima’s representation of Oki Data in this investigation and that the work he performed for Ricoh was not related to the subject matter of this investigation.  The Commission Investigative Staff supported Ricoh’s motion asserting that ABA Model Rule 1.9 was violated because “Mr. Nagashima’s antitrust and licensing work for Ricoh is substantially related to his current representation of Oki Data” and “the prejudice to Ricoh caused by Mr. Nagashima’s participation in this investigation outweighs the prejudice to Oki Data from being deprived of its counsel of choice.”

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ALJ Rogers Sets Target Date In Certain MEMS Devices (337-TA-700)

By Eric Schweibenz
|
Jan
13
Further to our January 4 post, on January 12, 2010, ALJ Robert K. Rogers, Jr. issued Order No. 4: Setting Target Date in Certain MEMS Devices and Products Containing the Same (Inv. No. 337-TA-700).

According to the Order, the Initial Determination will be due on January 4, 2011, and the target date for completion of this investigation is May 4, 2011 (which is 16 months after institution of the investigation).

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ALJ Rogers Denies Motion For Leave To File A Motion For Summary Determination In Certain Silicon Microphone Packages (337-TA-695)

By Eric Schweibenz
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Jan
20
On January 19, 2010, ALJ Robert K. Rogers, Jr. issued Order No. 10 in Certain Silicon Microphone Packages and Products Containing the Same (Inv. No. 337-TA-695).

In the Order, ALJ Rogers denied Respondent Analog Devices, Inc.’s  (“Analog”) motion for leave to file a summary determination motion on the issue of likelihood of success on the merits.  ALJ Rogers determined that “[w]ith less than 30 days before the start of the hearing, I find that it is a better use of Commission and private resources for all parties to focus on preparing for the hearing on the motion for temporary relief instead of devoting time to Analog’s motion for summary determination.”  ALJ Rogers further determined that “Analog will have a sufficient opportunity to raise the issues addressed in its motion for summary determination” at the hearing.

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ALJ Rogers Sets Procedural Schedule In Certain MEMS Devices (337-TA-700)

By Eric Schweibenz
|
Jan
26
On January 25, 2010, ALJ Robert K. Rogers, Jr. issued Order No. 5: Setting Procedural Schedule in Certain MEMS Devices and Products Containing the Same (Inv. No. 337-TA-700).

In the Order, ALJ Rogers sets the procedural schedule for the investigation and includes provisions for the early exchange of claim construction terms and proposed constructions.  The procedural schedule also indicates that the evidentiary hearing in this investigation will commence on August 16, 2010.

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ALJ Rogers Denies Motion To Compel In Certain Bulk Welding Wire Containers (337-TA-686)

By Eric Schweibenz
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Feb
01
On January 28, 2010, ALJ Robert K. Rogers, Jr. issued Order No. 35 in Certain Bulk Welding Wire Containers and Components Thereof and Welding Wire (Inv. No. 337-TA-686).  In the Order, ALJ Rogers denied Complainants The Lincoln Electric Company and Lincoln Global, Inc.’s (collectively, “Lincoln”) motion to compel Respondent Sidergas SpA (“Sidergas”) to respond to Lincoln’s Interrogatory Nos. 33-36.

In its motion, Lincoln stated that Sidergas had taken the position that it was not obligated to respond to Lincoln’s Interrogatory Nos. 33-36 because Lincoln had already exceeded the maximum number of interrogatories allowed under the Ground Rules to the investigation.  Lincoln argued that Sidergas’s position was unreasonable because Sidergas was attempting to count every interrogatory subpart as a separate interrogatory.

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ALJ Rogers Denies Motion For Leave To Supplement Notice Of Prior Art In Certain Printing And Imaging Devices (337-TA-690)

By Eric Schweibenz
|
Feb
12
On February 5, 2010, ALJ Robert K. Rogers, Jr. issued Order No. 11 in Certain Printing and Imaging Devices and Component Thereof (Inv. No. 337-TA-690) denying Respondents Oki Data Corporation and Oki Data Americas, Inc.’s (collectively “Oki Data”) motion for leave to supplement their notice of prior art.

In the motion, Oki Data sought to add ten additional prior art references and asserted that good cause existed for allowing the supplemental prior art notice.  Specifically, Oki Data argued that “all but one of the prior art references was unknown to Oki Data at the time its original prior art notice was filed” and that Oki Data “learned of these references in conjunction with its experts’ preparation of their reports.”  Complainants Ricoh Company, Ltd., Ricoh Americas Corporation, and Ricoh Electronics, Inc., as well as the Commission Investigative Staff opposed Oki Data’s motion for leave.

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ALJ Rogers Grants Motion To Terminate Investigation In Certain Electronic Devices (337-TA-667/673)

By Eric Schweibenz
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Feb
17
On February 12, 2010, ALJ Robert K. Rogers, Jr. issued the public version of Order No. 55C in Certain Electronic Devices, Including Handheld Wireless Communications Devices (Inv. No. 337-TA-667/673).  In the Order, ALJ Rogers granted a joint motion filed on January 29, 2010, by Complainant Saxon Innovations, LLC’s (“Saxon”), and Respondents Samsung Electronics Co., Ltd., Samsung Electronics America, Inc., and Samsung Telecommunications America, LLP (collectively, “Samsung”), and Palm, Inc. (“Palm”) to terminate the investigation on the basis of a settlement agreement.

According to the Order, the joint motion to terminate stated that portions of certain confidential agreements had been withheld from Samsung and Palm, and all parties to the joint motion argued that “requiring the disclosure of the full, unredacted agreements to all respondents would be contrary to public policy in favor of settlements.”  ALJ Rogers noted the general rule that both confidential and public versions of settlements are filed and served, and protective orders usually adequately safeguard confidential information.  Nonetheless, in granting the motion, ALJ Rogers acknowledged that “confidentiality is a primary inducement to parties to settle cases,” the parties’ request was unopposed, there are no non-settling respondents remaining after the termination of Samsung and Palm, and therefore, “strong public policy in favor of settlement supports the request to withhold the terms from Samsung and Palm.”

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ALJ Rogers Sets Target Date In Certain Notebook Computer Products (337-TA-705)

By Eric Schweibenz
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Mar
04
On March 2, 2010, ALJ Robert K. Rogers, Jr. issued Order No. 4:  Setting Target Date in Certain Notebook Computer Products and Components Thereof (Inv. No. 337-TA-705).

According to the Order, ALJ Rogers set June 23, 2011 as the target date (which is 16 months after institution of the investigation).  ALJ Rogers further indicated that the initial determination on alleged violation is due on February 23, 2011.

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ALJ Rogers Issues Public Version Of Initial Determination In Certain Semiconductor Integrated Circuits (337-TA-665)

By Eric Schweibenz
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Mar
08
On February 25, 2010, ALJ Robert K. Rogers, Jr. issued the public version of the 629 page Initial Determination On Violation of Section 337 and Recommended Determination on Remedy and Bond (“ID”) (dated October 14, 2009) in Certain Semiconductor Integrated Circuits and Products Containing Same (Inv. No. 337-TA-665).  Due to its large size, the ID has been broken into two parts: Part 1 and Part 2.

By way of background, the Complainant in this investigation is Qimonda AG (“Qimonda”) and the Respondents are LSI Corporation, Seagate Technology, Seagate Technology (US) Holdings, Inc., Seagate Technology LLC, Seagate Memory Products (US) Corporation, and Seagate (US) LLC (collectively, “Respondents”).

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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.