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ITC Decides To Modify Final Initial Determination In Certain Biometric Scanning Devices (337-TA-720)

By Eric Schweibenz
|
Oct
26
On October 24, 2011, the International Trade Commission (the “Commission”) issued a notice determining to modify the final initial determination (“ID”) issued by former Chief ALJ Paul J. Luckern on June 17, 2011, finding a violation of Section 337 in Certain Biometric Scanning Devices, Components Thereof, Associated Software, and Products Containing the Same (Inv. No. 337-TA-720). By way of background, the Complainant in this investigation is Cross Match Technologies, Inc. (“Cross Match”) and the Respondents are Suprema, Inc. (“Suprema”) and Mentalix, Inc. (“Mentalix”) (collectively, the “Respondents”).  In the ID, ALJ Luckern determined that a violation of Section 337 had occurred by Suprema through its infringement of one or more of claims 10, 12, and 15 of U.S. Patent No. 5,900,993.  ALJ Luckern also found a violation of Section 337 by reason of infringement of claim 19 of U.S. Patent No. 7,203,344 (the ‘344 patent).  The ALJ found no violation of Section 337 with respect to U.S. Patent No. 7,277,562.  See our June 21, 2011 post for more details.  Cross Match, the Respondents, and the Commission Investigative Staff each filed a petition for review of the ID.  On August 18, 2011 the Commission determined to review the ID with respect to it’s finding of a violation of Section 337 based on infringement of claim 19 of the ‘344 patent and requested briefing on certain issues.  Seeour August 24, 2011 post for more details. According to the October 24 notice, after examining the record of the investigation, including the ID and the parties’ submissions, the Commission determined to modify the ID in-part and issue an opinion supplementing its finding regarding the infringement of claim 19 of the ‘344 patent.  Specifically, the Commission determined that Mentalix directly infringes claim 19 and that Suprema infringes claim 19 by induced infringement, but not by contributory infringement. In addition, the Commission determined that the appropriate remedy for the violation was a limited exclusion order prohibiting the unlicensed entry of biometric scanning devices, components thereof, associated software and products containing the same that infringe one or more of claims 10, 12, and 15 of the ‘993 patent and claim 19 of the ‘344 patent. The Commission also determined to issue a cease and desist order prohibiting Mentalix from importing, selling, marketing, advertising, distributing, offering for sale, transferring (except for exportation), and soliciting U.S. agents or distributors for such infringing devices, components, software, and products.  Finally, the Commission determined that the public interest factors did not preclude this relief and that a 100% bond should be required during the period of Presidential review.
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ITC Decides To Rescind In Part Limited Exclusion Order In Certain Silicon Microphone Packages (337-TA-629)

By Eric Schweibenz
|
Oct
31
On October 28, 2011, the International Trade Commission (the “Commission”) issued a notice, order, and opinion determining to rescind in part the limited exclusion order issued in Certain Silicon Microphone Packages and Products Containing Same (Inv. No. 337-TA-629).  Please note that Oblon Spivak represents Respondent MEMS Technology Berhad (“MemsTech”) in this matter. According to the Notice, this investigation was instituted on January 14, 2008 based on the complaint of Knowles Electronics, LLC (“Knowles’) (the “‘629 investigation”).  In the ‘629 investigation, Knowles asserted violation of Section 337 based on the importation, sale for importation, and sale after importation of certain silicon microphone packages that infringed claims 1, 2, 9, 10, 15, 17, 20, 28, and 29 of U.S. Patent No. 7,242,089 (the ‘089 patent) and claims 1 and 2 of U.S. Patent No. 6,781,231 (the ‘231 patent).  On June 12, 2009, the Commission issued a limited exclusion order directed to MemsTech.  See our June 15, 2009 post for more details.  On June 3, 2011, the U.S. Court of Appeals for the Federal Circuit affirmed the Commission’s final determination.  See our June 9, 2011 post for more details.  On December 16, 2009, the Commission instituted Certain Silicon Microphone Packages and Products Containing the Same (Inv. No. 337-TA-695) (the “‘695 investigation”).  See our December 18, 2009 post for more details.  In the ‘695 investigation, Knowles alleged that Analog Devices Inc. violated Section 337 based on infringement of claim 1 of the ‘231 patent and claims 1, 2, 7, 16, 17, 18, and 20 of the ‘089 patent.  On November 22, 2010, the ALJ issued an initial determination finding that all of the asserted claims are invalid under 35 U.S.C. §§ 102 and 103, based on prior art not previously considered in the ‘629 investigation.  See our January 3, 2011 post for more details.  On January 21 2011, the Commission issued a notice determining not to review a majority of the ALJ’s findings on invalidity.  Knowles appealed the Commission’s final determination to the Federal Circuit, but later withdrew its appeal before the appeal was decided.  On August 9, 2011, MemsTech petitioned the Commission to rescind all aspects of the June 12, 2009 limited exclusion order that are based on claim 1 of the ‘231 patent and claims 1, 2, 17, and 20 of the ‘089 patent because the Commission found those claims invalid in the ‘695 investigation.  Knowles opposed MemsTech’s petition. In the notice and accompanying opinion, the Commission “determined that its invalidity determinations in [the ‘695 investigation] constitute changed circumstances and justify partial rescission of the June 12, 2009 exclusion order entered in [the ‘629 investigation].”  The Commission therefore determined to rescind the portions of the June 12, 2009 exclusion order that refer to claim 1 of the ‘231 patent and claims 1, 2, 17, and 20 of the ‘089 patent.  All other provisions of the June 12, 2009 limited exclusion order remain in effect.
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ITC Decides To Review In Part Initial Determination Denying Temporary Relief In Certain Muzzle-Loading Firearms (337-TA-777)

By Eric Schweibenz
|
Nov
16
On November 10, 2011, the International Trade Commission (the “Commission”) issued a notice determining to review in part an Initial Determination (“ID”) issued by ALJ Robert K. Rogers, Jr. on August 31, 2011 denying a motion for temporary relief in Certain Muzzle-Loading Firearms and Components Thereof (Inv. No. 337-TA-777).  On review, the Commission determined to take no position on the likelihood of success on the merits, the balance of hardships, and the public interest. By way of background, the Complainants in this investigation are Thompson/Center Arms Company, Inc. and Smith & Wesson Corp. (collectively, the “Complainants”), and the Respondents are Dikar Sociedad Cooperativa Limitada, Blackpowder Products, Inc., Connecticut Valley Arms, Bergara Barrels North America, Bergara Barrels Europe, Ardesa Firearms (“Ardesa”), and Traditional Sporting Goods, Inc. d/b/a Traditions Sporting Firearms (“Traditions”).  On May 11, 2011, the Complainants filed a complaint requesting that the ITC commence an investigation pursuant to Section 337 concerning certain muzzle-loading firearms and components thereof that allegedly infringe U.S. Patent Nos. 7,908,781, 7,814,694 (the ‘694 patent), 7,140,138, 6,604,311, 5,782,030, and 5,639,981.  With their complaint, the Complainants also filed a motion for temporary relief directed only to Traditions and Ardesa (collectively, the “TEO Respondents”) that requested a temporary limited exclusion order and temporary cease and desist orders.  By stipulation of the parties, the motion for temporary relief was ultimately limited to the alleged infringement of certain claims of the ‘694 patent.  On August 31, 2011, ALJ Rogers issued the ID denying the Complainants’ motion for temporary relief.  In the ID, ALJ Rogers found that the Complainants had not demonstrated that they would suffer irreparable harm and that the lack of irreparable harm precluded temporary relief in the investigation.  The ALJ also found that there was a likelihood of success on the merits with respect to claim 10 of the ‘694 patent, that the balance of hardships did not favor either party, and that the public interest would not preclude preliminary relief.  See our November 15, 2011 post for more details. According to the November 10 notice, the TEO Respondents filed opening comments on the ID on September 12, 2011.  The Complainants submitted reply comments on September 14, 2011.  The comments did not take issue with the ALJ’s findings regarding the lack of irreparable harm.  Instead, the comments principally dealt with the Complainants’ likelihood of success on the merits, challenging various aspects of the ALJ’s analyses of infringement and the balance of hardships. After examining the record of the investigation, including the ID and the subsequent comments and reply comments, the Commission found that irreparable harm had not been demonstrated and therefore determined not to review the ID’s finding of lack of irreparable harm and the ID’s denial of temporary relief.  The Commission further found that because irreparable harm is dispositive, the Commission need not evaluate the remaining temporary relief factors.  Accordingly, the Commission determined to review the ID’s findings on the likelihood of success, the balance of hardships, and the public interest but to take no position on those findings.
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ITC Reviews And Affirms Grant Of Summary Determination On Domestic Industry In Certain Reduced Ignition Proclivity Cigarette Paper Wrappers (337-TA-756)

By Eric Schweibenz
|
Nov
29
On November 23, 2011, the International Trade Commission (“Commission”) issued a notice generally affirming an Initial Determination (“ID”) by ALJ E. James Gildea granting Complainant Schweitzer-Mauduit International Inc.’s (“SWM”) motion for summary determination that it satisfies the economic prong of the domestic industry requirement in Certain Reduced Ignition Proclivity Cigarette Paper Wrappers and Products Containing Same (Inv. No. 337-TA-756). By way of background, SWM filed a motion for summary determination on July 6, 2011, that its possession of significant investment in plant and equipment, significant employment of labor and capital, and substantial investment in research, development, design, and engineering satisfy the economic prong of the domestic industry requirement.  On July 26, 2011, the Commission Investigative Attorney filed a response supporting SWM’s motion.  According to the notice, various respondents submitted objections with respect to the domestic industry requirement.  ALJ Gildea issued the ID on October 24, 2011, granting SWM’s motion.  No petitions for review were filed. According to the Notice, the Commission determined to review the subject ID and affirmed the ID with respect to 19 U.S.C. § 1337(a)(3)(A) and (B) (i.e., that SWM had significant investment in plant and equipment, and significant employment of labor or capital, respectively).  However, the Commission took no position with respect to 19 U.S.C. § 1337(a)(3)(C) (i.e., whether SWM had substantial investment in the exploitation, including engineering, research and development, or licensing articles protected by the subject patents).
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ITC Issues Final Determination Of No Violation In Certain Electronic Devices With Image Processing Systems (337-TA-724)

By Eric Schweibenz
|
Nov
29
On November 21, 2011, the International Trade Commission (the “Commission”) issued a notice determining that there has been no violation of Section 337 in Certain Electronic Devices With Image Processing Systems, Components Thereof, and Associated Software (Inv. No. 337-TA-724).  By way of background, the Complainants in this investigation are S3 Graphics Co. Ltd. and S3 Graphics Inc. (collectively, “S3G”) and the Respondent is Apple Inc. (“Apple”).  On July 1, 2011, ALJ E. James Gildea issued an Initial Determination (“ID”) finding that Apple violated Section 337 through its infringement of certain claims of U.S. Patent Nos. 6,683,978 and 6,658,146.  ALJ Gildea found no violation of Section 337 with respect to U.S. Patent Nos. 7,043,087 and 6,775,417 because the asserted claims of those patents are invalid.  See our July 6, 2011 post for more details. On September 2, 2011, the Commission issued a notice determining to review the ID in its entirety.  See our September 7, 2011 post for more details. According to the November 21 notice, on September 15, 2011, non-parties Advanced Micro Devices, Inc. (“AMD”) and its subsidiaries ATI Technologies ULC and ATI International SRL filed a motion to intervene and terminate the investigation based on a claim that AMD owns the patents at issue and declines to assert them in the investigation.  On September 19, 2011, Apple filed its own motion to terminate based on AMD’s patent ownership claims.  Subsequently, the Commission determined to extend the target date for completion of the investigation until November 21, 2011. After examining the record of the investigation, including the ID and the submissions of the parties and non-parties, the Commission determined to reverse ALJ Gildea’s finding of a violation of Section 337 and find no violation.  Additionally, the Commission determined to deny AMD’s motion to file public interest comments out of time, to grant AMD’s motion to file a reply in connection with its motion to intervene and terminate, to deny AMD’s motion to intervene and terminate, and to deny Apple’s motion to terminate.  Lastly, the Commission determined to terminate the investigation.
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ITC Issues Final Determination Of No Violation In Certain Electronic Imaging Devices (337-TA-726)

By Eric Schweibenz
|
Dec
01
On November 29, 2011, the International Trade Commission (the “Commission”) issued a notice determining that there has been no violation of Section 337 in Certain Electronic Imaging Devices (Inv. No. 337-TA-726).  By way of background, the Complainant in this investigation is Flashpoint Technology, Inc. (“Flashpoint”) and the remaining Respondents are HTC Corp. and HTC America, Inc. (collectively, “HTC”).  The asserted patents are U.S. Patent Nos. 6,262,769 (the ‘769 patent) and 6,163,816 (the ‘816 patent).  On July 28, 2011, former Chief ALJ Paul J. Luckern issued an Initial Determination (“ID”) finding no violation of Section 337 by HTC.  Specifically, ALJ Luckern determined, inter alia, that (i) Flashpoint failed to show that the asserted claims of the ‘769 and ‘816 patents are infringed, (ii) it has been established that the asserted claims of the ‘816 patent are invalid under 35 U.S.C. § 102(b) (on sale bar), (iii) it was not established that the asserted claims of the ‘769 and ‘816 patents are invalid in view of prior art, (iv) Flashpoint’s rights under the ‘816 and ‘769 patents were not exhausted with respect to HTC’s accused Windows Phone 7 (“WP7”) products, and (v) Flashpoint did not establish a domestic industry with respect to either of the ‘769 or ‘816 patents.  See our September 30, 2011 post for more details. On September 26, 2011, the Commission issued a notice determining to review the ID in part.  In particular, the Commission determined to review (1) infringement of the asserted claims of the ‘769 patent by the accused HTC Android smartphones, (2) infringement of the asserted claims of the ‘769 patent by the accused HTC WP7 smartphones, (3) the technical prong of the domestic industry requirement for the ‘769 patent with respect to the licensed Motorola smartphones, (4) the technical prong of the domestic industry requirement for the ‘769 patent with respect to the licensed Apple smartphones, and (5) the enforceability of the asserted patents under the doctrines of implied license and exhaustion.  The Commission also determined to review and take no position on (a) anticipation of the asserted claims of the ‘816 patent under 35 U.S.C. § 102 in view of the prior art references, and (b) obviousness of the asserted claims of the ‘816 patent under 35 U.S.C. § 103 in view of the prior art references.  The Commission requested that the parties brief their positions on the issues under review with reference to the applicable law and the evidentiary record.  See our September 27, 2011 post for more details. According to the November 29 notice, after examining the record of the investigation, including the ID and the submissions of the parties, the Commission determined to affirm ALJ Luckern’s determination of no violation of Section 337 with respect to the ‘769 patent on the bases that (1) the accused HTC Android smartphones and the accused HTC WP7 smartphones do not infringe the ‘769 patent, and (2) HTC has established that it has an implied license to practice the ‘769 patent with respect to the accused WP7 smartphones.  The Commission further determined to take no position on the ALJ’s finding that HTC has not established the right to practice the ‘769 patent with respect to the accused WP7 smartphones under the defense of patent exhaustion.  The Commission also determined to take no position on the ALJ’s finding that Flashpoint has not met the technical prong of the domestic industry requirement for the ‘769 patent.  Lastly, the Commission determined to terminate the investigation.
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ITC Issues General Exclusion Order In Certain Inkjet Ink Supplies (337-TA-730)

By Eric Schweibenz
|
Dec
01
On November 29, 2011, the International Trade Commission (“Commission”) issued a notice finding a violation of Section 337 and issuing a general exclusion order (“GEO”) in Certain Inkjet Ink Supplies and Components Thereof (Inv. No. 337-TA-730). By way of background, on August 26, 2011, ALJ Theodore R. Essex issued the public version of an Initial Determination (“ID”) (dated August 3, 2011) granting Complainants Hewlett-Packard Company and Hewlett-Packard Development Company’s (collectively, “HP”) motion for summary determination that HP satisfied the domestic industry requirement and that defaulting Respondents Shanghai Angel Printer Supplies Co., Ltd., Zhuhai National Resources & Jingjie Imaging Products Co., Ltd., Tatrix International, and Ourway Image Co. Ltd. (collectively, the “Defaulting Respondents”) had violated Section 337 with respect to certain claims of U.S. Patent Nos. 6,959,985 (the ‘985 patent) and 7,104,630 (the ‘630 patent).  See our August 30, 2011 post for more details.   According to the notice, non-defaulting Respondents Mipo International, Ltd., Mextec Group Inc., and Shenzhen Print Media Co., Ltd. were terminated from the investigation based on either a settlement agreement with HP or because HP withdrew its allegations against them. According to the notice, the Commission on September 1, 2011 determined not to review ALJ Essex’s ID and requested briefing on remedy, the public interest, and bonding.  Only HP and the Commission investigative attorney timely filed submissions, and both proposed GEOs.  The notice further stated that Commission determined that the appropriate form of relief is indeed a GEO prohibiting the unlicensed entry of inkjet cartridges and components thereof covered by one or more of claims 1-5, 7, 22-25, 27 and 28 of the ‘985 patent and claims 1-7, 11-12, 14, 26-30, 32, 34 and 35 of the ‘630 patent.   The Commission further determined that the bond for temporary importation during the period of Presidential review shall be in the amount of 100 percent of the value of the imported articles that are subject to the order.  The notice additionally stated that the investigation is terminated.
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ITC Issues General Exclusion Order And Cease And Desist Orders In Certain Paper Towel Dispensing Products (337-TA-718)

By Eric Schweibenz
|
Dec
05
On December 1, 2011, the International Trade Commission (“Commission”) issued a notice that the Commission issued a general exclusion order (“GEO”) and cease and desist orders in Certain Electronic Paper Towel Dispensing Devices and Components Thereof (Inv. No. 337-TA-718). By way of background, on July 21, 2011, ALJ E. James Gildea issued the public version of an Initial Determination (“ID”) (dated July 12, 2011) granting Complainant Georgia-Pacific Consumer Products LP’s (“Georgia-Pacific”) motion for summary determination that defaulting Respondents Stefco Industries, Inc. and Cellynne Corporation (collectively, “Stefco”) and defaulting Respondent NetPak Elektronik Plastik ve Kozmetik Sanayi Ve Ticaret Ltd. (“NetPak”) (Stefco and NetPak collectively, the “Defaulting Respondents”) violated Section 337.  The ALJ also recommended that the Commission issue general exclusion orders and cease and desist orders and impose a bond of 100 percent on the Defaulting Respondents.  See our July 29, 2011 post for more details.   According to the notice, non-defaulting Respondents Kruger Products LP; KTG USA LP; Draco Hygienic Products Inc.; Paradigm Marketing Consortium, Inc.; United Sourcing Network Corp.; New Choice (H.K.) Ltd.; Vida International Inc.; Jet Power International Limited; Winco Industries Co.; DWL Industries Co.; Ko-Am Corporation Inc. d/b/a Janitor's World; Natury, S.A. De C.V.; Franklin Financial Management, Inc. d/b/a Update International; and Alliance in Manufacturing LLC were terminated by consent order. The notice stated that the Commission on August 19, 2011, determined not to review ALJ Gildea’s ID and requested briefing on remedy, the public interest, and bonding.  Only Georgia-Pacific and the Commission investigative attorney timely filed submissions.  The notice further stated that the Commission determined to issue a GEO with respect to claims 4-7 of U.S. Patent No. 6,871,815; claims 8-22 of U.S. Patent No. 7,017,856; claims 1-3 of U.S. Patent No. 7,182,289; and claims 4-22 of U.S. Patent No. 7,387,274, and cease and desist orders against Stefco with respect to the same claims. The Commission further determined that the bond for temporary importation during the period of Presidential review shall be in the amount of 100 percent of the value of the imported articles that are subject to the order.  The notice additionally stated that the investigation is terminated.
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ITC Finds Section 337 Violation Against HTC And Issues Limited Exclusion Order In Certain Personal Data And Mobile Communications Devices (337-TA-710)

By Eric Schweibenz
|
Dec
19
On December 19, 2011, the International Trade Commission (the “Commission”) issued a notice finding a violation of Section 337 and determining to issue a limited exclusion order in Certain Personal Data and Mobile Communications Devices and Related Software (Inv. No. 337-TA-710). By way of background, the Complainants in this investigation are Apple Inc. and NeXT Software, Inc. (collectively, “Apple”) and the Respondents are High Tech Computer Corp., HTC America Inc., and Exedia, Inc. (collectively, “HTC”).  On July 15, 2011, ALJ Charneski determined that a violation of Section 337 had occurred by HTC through its infringement of certain claims of U.S. Patent Nos. 5,946,647 (the ‘647 patent) and 6,343,263 (the ‘263 patent).  The ID found no violation of Section 337 with respect to U.S. Patent Nos. 5,481,721 (the ‘721 patent) and 6,275,983 (the ‘983 patent) because Apple had not demonstrated that HTC infringed the asserted claims of these patents or that Apple had satisfied the domestic industry requirement with respect to these patents.  The ID concluded that HTC had not demonstrated that any of the asserted patent claims are invalid.  See our September 2, 2011 post for more details. HTC, Apple, and the Commission Investigative Staff (“OUII”) filed petitions for review of the ID on August 1, 2011.  HTC, Apple, and OUII each filed responses to the petitions for review on August 9, 2011.  On September 15, 2011, the Commission determined to review several issues regarding each of the four patents asserted in this investigation.  See our September 19, 2011 post for more details. According to the December 19 notice, after examining the record of the investigation, including the ID and the parties’ submissions, the Commission determined that HTC violated Section 337 by reason of its importation and sale of articles that infringe claims 1 and 8 of the ‘647 patent.  The Commission also determined to reverse the ALJ’s finding of violation as to claims 15 and 19 of the ‘647 patent and as to the asserted claims of the ‘263 patent.  Lastly, the Commission affirmed the ALJ’s conclusion that there has been no violation as to the ‘721 and ‘983 patents.   Further, the Commission determined that the appropriate remedy is a limited exclusion order prohibiting the entry of HTC’s personal data and mobile communications devices and related software into the U.S. that infringe claims 1 or 8 of the ‘647 patent.  The Commission also determined that the public interest factors enumerated in Section 337 do not preclude the issuance of the limited exclusion order.  Nothwithstanding the foregoing, the Commission determined that in light of competitive conditions in the U.S. economy, the exclusion of HTC articles subject to the order shall commence on April 19, 2012 to provide a transition period for U.S. carriers.  Moreover, the notice indicates that HTC may import refurbished handsets to be provided to consumers as replacements under warranty or an insurance contract (whether the warranty or contract is offered by HTC, a carrier, or by a third party) until December 19, 2013.  The notice also provides that         “[t]his exemption does not permit HTC to call new devices ‘refurbished’ and to import them as replacements.” Lastly, the Commission determined that zero bond will be required for temporary importation during the period of Presidential review.  The notice additionally stated that the investigation is terminated.
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ITC Decides To Review In Part Initial Determination In Certain Portable Electronic Devices (337-TA-721)

By Eric Schweibenz
|
Dec
20
On December 16, 2011, the International Trade Commission (the “Commission”) issued a notice determining to review in part an Initial Determination (“ID”) issued by ALJ Charles E. Bullock on October 17, 2011 finding no violation of Section 337 in Certain Portable Electronic Devices and Related Software(Inv. No. 337-TA-721).  By way of background, the Complainant in this investigation is HTC Corporation (“HTC”) and the Respondent is Apple Inc. (“Apple”).  In the ID, ALJ Bullock determined that no violation of Section 337 had occurred by Apple in the importation into the U.S., sale for importation, or sale within the U.S. after importation of certain portable electronic devices and related software.  Specifically, the ALJ found that Apple does not infringe various claims of U.S. Patent Nos. 6,999,800 (the ‘800 patent), 5,541,988 (the ‘988 patent), 6,320,957 (the ‘957 patent), and 7,716,505 (the ‘505 patent).  ALJ Bullock also found that the asserted claims are not invalid.  Lastly, the ALJ found that a domestic industry exists with respect to the ‘988 and ‘957 patents, but not with respect to the ‘800 and ‘505 patents. According to the December 16 notice, HTC filed a petition for review of the ID—which also included a contingent petition for review—on October 31, 2011.  That same day, Apple filed a contingent petition for review of the ID.  On November 8, 2011, the parties filed responses to the petition and contingent petitions for review. After examining the record of the investigation, including the ID and the parties’ submissions, the Commission determined to review the ID in part.  In particular, the Commission determined to review ALJ Bullock’s findings with respect to the ‘800 patent.  The Commission also determined to review the ALJ’s construction and finding that the accused portable electronic devices and related software do not meet the “manually operable selector” limitation of independent claim 1 of the ‘988 patent and independent claim 8 of the ‘957 patent.  According to the December 16 notice, after reviewing this limitation, the Commission declined to take a position on it.  The Commission further determined not to review any other issues in the ID. Accordingly, the Commission terminated the investigation with respect to the ‘500, ‘988, and ‘957 patents. The notice states that the parties are requested to submit briefing on the issues under review and on remedy, the public interest, and bonding.  The notice further states that the Commission is particularly interested in responses to nine questions listed in the notice. Written submissions are due by December 30, 2011, with reply submissions due by January 6, 2012.
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ITC Reviews-In-Part And Affirms The Initial Determination Of No Violation In Certain Video Game Systems And Controllers (337-TA-743)

By Eric Schweibenz
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Jan
10
On January 5, 2010, the International Trade Commission (the “Commission”) issued a notice of final determination to review-in-part and affirm the initial determination of no violation of Section 337, and terminate the investigation in Certain Video Game Systems and Controllers (Inv. No. 337-TA-743). By way of background, and according to the notice, Complainant Motiva, LLC accused Respondents Nintendo Co., Ltd. and Nintendo of America Inc. (collectively “Nintendo”) of infringing certain claims of U.S. Patent Nos. 7,292,151 (the ‘151 patent) and 7,492,268 (the ‘268 patent).  In his November 2, 2011 Initial Determination (“ID”), ALJ Rogers found no violation of Section 337.  Specifically, ALJ Rogers determined that the accused Nintendo products do not infringe (1) claims 16, 27-32, 44, 57, 68, and 84 of the ‘151 patent, and (2) claims 2, 4, 11, and 14 of the ‘268 patent.  ALJ Rogers also determined that an industry does not exist in the U.S. that exploits the ‘151 or ‘268 patents, as required by 19 U.S.C. § 1337(a)(2).  ALJ Rogers further determined that the claims of the ‘151 and ‘268 patents are neither invalid nor unenforceable due to inequitable conduct.  See our November 4, 2011 post for more details. On November 15, 2011, Complainant Motiva and the Commission investigative attorney filed petitions for review of portions of the ID.  Respondent Nintendo filed a response to both petitions and the Commission Investigative Attorney filed a response to Motiva’s petition. Having examined the record of this investigation, the Commission determined to deny the petitions for review and, upon its own initiative, further determined to review “(1) a statement in the ID connecting the relevant level of skill in the art to the skill of the inventors, and (2) the relevant time frame for considering whether a domestic industry exists or is in the process of being established.”  After issuing an opinion on those issues, the Commission determined not to review the remainder of the ID, thus affirming ALJ Rogers’ finding of no violation of Section 337 and terminating the investigation.
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ITC Issues Notice of Final Determination On Remand Finding Violation In Certain Agricultural Vehicles (337-TA-487)

By Eric Schweibenz
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Jan
23
On January 13, 2012, the International Trade Commission (the “Commission”) issued a notice that Bourdeau Bros., Inc., OK Enterprises, and Sunova Implement Co. (collectively, “Bourdeau”) were found on remand to violate Section 337 by infringing Deere & Co.’s (“Deere”) trademarks through gray market sales of self-propelled forage harvesters in Certain Agricultural Vehicles & Components Thereof(Inv. No. 337-TA-487).  The Commission reinstated a general exclusion order against the subject harvesters and cease and desist orders that issued in the original investigation. By way of background, the ITC instituted an investigation in February 2003 based on a complaint filed by Deere alleging that Bourdeau and other Deere dealers unlawfully imported and sold Deere’s European-version harvesters in the U.S. in violation of Section 337’s prohibition against importation of products “produced by the owner of the United States trademark or with its consent, but not authorized for sale in the United States,” often called “gray market goods.”  In May 2004, the ITC determined there were material differences between Deere’s North American version and European version harvesters, supporting a finding of trademark infringement and thus a general exclusion order. In March 2006, the Federal Circuit vacated-in-part and remanded the ITC’s decision based on the additional requirement that Deere also show that all or substantially all of its authorized domestic products (North American version) are materially different from the accused gray market goods (European version).  On remand, in December 2006, the ALJ issued an initial determination of infringement, finding that the original record showed that Deere did not authorize the sales of the European version in the U.S., that new evidence of alleged Deere financing of the European version sold by its dealers did not show authorization, and that the number of sales Bourdeau alleged were authorized was in any event so small that “substantially all” of Deere’s authorized U.S. sales were of the North American version. In August 2008, the ITC reversed the ALJ, finding substantial evidence that Deere’s U.S. and European dealers had apparent authority to sell the European version, that Deere itself sold and/or facilitated the sale of the European version in the U.S., and that not “all or substantially all” of the authorized harvesters sold in the U.S. were the North American version.  The ITC noted that since the total number of authorized sales of the North American version in the U.S. was approximately only 4400, the introduction of even a small number of the European version could cause substantial consumer confusion.  The ITC then found such confusion based on its determination that at least 141 European version harvesters sold in the U.S. were sold by official Deere dealers.  The ITC considered 141 to be a “substantial quantity” of nonconforming goods because it constituted 40 to 57% of the 247 to 347 European version harvesters sold in the U.S. by both official and independent (in some cases, accused) dealers.  Importantly, the ITC did not use as its denominator the total number of authorized harvesters sold in the U.S., which would have been the number of authorized North American version harvesters (4400) plus the number of authorized European version harvesters (141), or 4541. In May 2010, the Federal Circuit held that the ITC misapplied the “all or substantially all” test, and that the denominator should have been the total authorized sales in the U.S. in accordance with the court’s remand instructions, not the total European version sales in the U.S.  Using the ratio dictated by its remand instructions as well as the ITC’s lower-end and upper-end findings, the court concluded that a total of 3.1 to 3.4% of the authorized harvesters sold in the U.S. were the European version, or conversely that 96.6 to 96.9% of the authorized harvesters sold in the U.S. were the North American version.  The court observed that those figures may be insubstantial, but that is for the ITC to determine on remand based on all of the relevant facts, noting that “[t]he cutoff as to what is to be considered ‘substantially all’ is a question of fact.”  See our May 27, 2010 post for more details. According to the January 13 notice, the Commission requested briefing on the merits of the remand, and after examining the record of the investigation, including the parties’ submissions on remand, the Commission determined that Deere established that substantially all of the U.S. sales of the subject harvesters were of the North American version, and Deere therefore met its burden to prove on remand that it satisfied the “all or substantially all” test for gray market trademark infringement.  Accordingly, The Commission reinstated the exclusion order and cease and desist orders with respect to European versions of the subject harvesters issued by the Commission in the original investigation.  Based on the above, the Commission proceeded to terminate the investigation.
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ITC Issues Notice And Advisory Opinion In Certain Coaxial Cable Connectors (337-TA-650)

By Eric Schweibenz
|
Feb
14
On February 9, 2012, the International Trade Commission (the “Commission”) issued a notice and advisory opinion granting a request by non-respondent Holland Electronics, LLC (“Holland”) and determining that Holland’s identified coaxial cable connectors are not covered by the Commission’s March 31, 2010 general exclusion order for U.S. Patent No. 6,558,194 in Certain Coaxial Cable Connectors and Components Thereof and Products Containing Same (Inv. No. 337-TA-650). By way of background, the Complainant in this investigation is John Mezzalingua Associates, Inc. d/b/a PPC, Inc. (“PPC”) and the Respondents are Fu Ching Technical Industry Co. Ltd., Gem Electronics, Inc. (collectively, the “Active Respondents”), Hanjiang Fei Yu Electronics Equipment Factory, Zhongguang Electronics, Yangzhou Zhongguang Electronics Co., Ltd., and Yangzhou Zhongguang Foreign Trade Co., Ltd. (collectively, the “Defaulting Respondents”).  The investigation was instituted on May 30, 2008.  On October 13, 2009, ALJ Gildea issued his Initial Determination (“ID”) finding, inter alia, that the Defaulting Respondents violated Section 337 by infringing various patents, including U.S. Patent No. 6,558,194 (the ‘194 patent).  See our November 10, 2009 post for more details.  On December 14, 2009, the Commission determined to review the ID in part, but the Commission did not review the ALJ’s determination with respect to the ‘194 patent.  See our December 16, 2009 post for more details. The Commission issued a general exclusion order on March 31, 2010 with respect to the ‘194 patent based on finding a violation of Section 337 by the defaulting respondents.  According to the opinion, Holland filed a request on September 12, 2011, for an advisory opinion under Commission Rule 210.79, asking the Commission to determine that its identified connectors are outside of the scope of the Commission's March 31, 2010 general exclusion order.  Holland first argued that it is authorized to import and sell its identified connectors because PPC entered into a covenant not to sue with Holland in 2006.  Holland additionally argued that its identified connectors did not infringe the ‘194 patent.  Holland requested expedited consideration and asserted that referral to an ALJ was unnecessary.  Holland noted that U.S. Customs and Border Protection (CBP) was holding Holland’s connectors at two ports in California, and CBP indicated it would not consider the legal import of Holland’s covenant not to sue with PPC.  According to the opinion, neither PPC nor the Commission Investigative Attorney disputed that the Holland products at issue are subject to a covenant not to sue, and both agreed that Holland’s identified products do not fall within the scope of the exclusion order. The Commission determined that the March 31, 2010 general exclusion order covered coaxial connectors that infringe claims 1 and/or 2 of the ‘194 patent, “except under license of the patent owner or as provided by law,” and that according to the Federal Circuit, covenants not to sue are equivalent to non-exclusive patent licenses.  The Commission therefore agreed with the parties and determined that Holland’s identified products that are subject to the covenant not to sue are outside the scope of the March 31, 2010 general exclusion order.
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ITC Issues Final Determination Of No Violation In Certain Portable Electronic Devices (337-TA-721)

By Eric Schweibenz
|
Feb
22
On February 17, 2012, the International Trade Commission (the “Commission”) issued a notice determining that there has been no violation of Section 337 in Certain Portable Electronic Devices and Related Software (Inv. No. 337-TA-721). By way of background, the Complainant in this investigation is HTC Corporation (“HTC”) and the Respondent is Apple Inc. (“Apple”).  On December 21, 2011, ALJ Charles E. Bullock determined in his Initial Determination (“ID”) that no violation of Section 337 had occurred by Apple in the importation into the U.S., sale for importation, or sale within the U.S. after importation of certain portable electronic devices and related software.  Specifically, the ALJ found that Apple did not infringe various claims of U.S. Patent Nos. 6,999,800 (the ‘800 patent), 5,541,988 (the ‘988 patent), 6,320,957 (the ‘957 patent), and 7,716,505 (the ‘505 patent).  ALJ Bullock also found that the asserted claims are not invalid.  Lastly, the ALJ found that a domestic industry exists with respect to the ‘988 and ‘957 patents, but not with respect to the ‘800 and ‘505 patents.  See our January 5, 2012 post for more details.    According to the February 17 notice, after examining the record of the investigation, including the ID and the submissions of the parties, the Commission determined that there has been no violation of Section 337.  More particularly, the Commission determined “to reverse the ALJ’s finding that the ‘switching the PDA system from normal mode to sleep mode when the PDA system has been idle for a second period of time’ limitation of claim 1 is met and affirm the ALJ’s determination that the accused products do not meet the ‘implementing a power detection method comprising steps of: detecting an amount of power of a source in the power system; switching the mobile phone system to off mode when the detected amount is less than a first threshold; and switching the PDA system to off mode when the detected amount is less than a second threshold’ limitations of claim 1.”  The Commission also affirmed the ALJ’s finding that no domestic industry exists for the ‘800 patent.  Lastly, the Commission also found that Apple’s waiver argument is moot.
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ITC Decides To Review Initial Determination In Certain Ground Fault Circuit Interrupters (337-TA-739)

By Eric Schweibenz
|
Feb
24
On February 21, 2012, the International Trade Commission (the “Commission”) issued a notice determining to review in its entirety a Final Initial Determination (“ID”) issued by Chief ALJ Charles E. Bullock on December 20, 2011 finding no violation of Section 337 in Certain Ground Fault Circuit Interrupters and Products Containing Same(Inv. No. 337-TA-739). By way of background, the Complainant in this investigation is Leviton Manufacturing Co., Inc. (“Leviton”) alleging violation of Section 337 with respect to certain ground fault circuit interrupters and products containing the same which infringe certain claims of U.S. Patent Nos. 7,463,124 (the ‘124 patent), 7,737,809 (the ‘809 patent), and 7,764,151 (the ‘151 patent). Although the Notice of Investigation named numerous respondents, several were found in default or were terminated due to settlement, consent orders, or withdrawn allegations.  The seven remaining respondents are Zhejiang Trimone Electric Science & Technology Co. Ltd. (“Trimone”), Fujian Hongan Electric Co, Ltd. (“Hongan”), TDE, Inc. (“TDE”), Shanghai ELE Manufacturing Corp., Orbit Industries, Inc., American Electric Depot Inc., and Shanghai Jia AO Electrical Co. According to the notice, ALJ Bullock’s ID on December 20, 2011 found no violation of Section 337 on the grounds that the Leviton had not sufficiently shown that a domestic industry exists with respect to the three asserted patents and/or articles protected by those patents.  On January 6, 2012, Leviton, the Commission investigative attorney, and a group of respondents consisting of Trimone, Hongan, and TDE filed petitions for review of the ID. After examining the record of the investigation, the Commission determined to review the ID in its entirety. However, the Commission requested briefing only with respect to the following five issues, in addition to issues on remedy, the public interest, and bonding:
  1. Whether the complainant has carried its burden to show the existence of a domestic industry under 19 U.S.C. § 1337(a)(3).
  2. Whether the ID implicitly applied a different claim construction when analyzing the validity of the ‘124 and ‘151 patents than was applied when analyzing infringement of those patents.
  3. Whether the ID relied upon unclaimed features of the disclosed inventions when analyzing the validity of the ‘124 and ‘151 patents.
  4. Whether the ID considered all of respondent’s arguments concerning the validity of the ‘809 patent.
  5. Whether the following asserted patent claims (a) have been properly construed, (b) protect articles for which there is an industry in the United States, (c) are infringed by the accused articles, and (d) have not been shown to be invalid: claim 7 of the ‘124 patent, claim 4 of the ‘151 patent, and claims 1l and 43 of the ‘809 patent.
Written submissions are due by March 2, 2012, with reply submissions due by March 9, 2012.
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ITC Issues Final Determination Of No Violation In Certain Mobile Devices, And Related Software Thereof (337-TA-750)

By Eric Schweibenz
|
Mar
20
On March 16, 2012, the International Trade Commission (the “Commission”) issued a notice determining to review-in-part and affirm the final initial determination of no violation of Section 337, and terminate the investigation in Certain Mobile Devices and Related Software Thereof(Inv. No. 337-TA-750). By way of background, Complainant Apple, Inc. (“Apple”) accused Respondent Motorola Mobility, Inc. (“Motorola”) of infringing certain claims of U.S. Patent Nos. 7,812,828 (the ‘828 patent), 7,663,607 (the ‘607 patent), and 5,379,430 (the ‘430 patent).  In his January 13, 2012 Initial Determination (“ID”), ALJ Essex found no violation of Section 337.  According to the notice, “the ALJ determined that [the] accused products do not infringe the asserted claims of the ‘828 patent either literally or under the doctrine of equivalents (“DOE”),” and that the “asserted claims of the ‘828 patent are not invalid.”  With respect to the ‘430 and ‘607 patents, the notice provides that ALJ Essex “found that the accused products literally infringe the asserted claims,” but that “the asserted claims of the ‘430 patent are invalid under 35 U.S.C. § 102 for anticipation, and that the asserted claims of the ‘607 patent are invalid under 35 U.S.C. § 102 for anticipation and under 35 U.S.C. § 103 for obviousness.”  Additionally, ALJ Essex  “found that Apple has standing to assert the ‘430 patent, and that Motorola is not licensed to practice the ‘430 patent.” Both Apple and Motorola filed petitions for review regarding “claim construction infringement, and validity,” and “claim construction infringement, validity, domestic industry, standing, and licensing,” respectively.  The Commission investigative attorney filed a joint response to both petitions, and public interest statements were filed by Google Inc. and Apple.  Apple’s public interest statement was accompanied by a motion for leave to file the statement out of time.  Having examined the record of this investigation, the Commission determined to review the final ID in part, specifically addressing three portions thereof.  First, “the Commission determine[d] to review the ID for the limited purpose of clarifying that the ALJ also found claims 24-26, and 29 of the ‘828 patent not infringed” based on Apple’s failure to distinguish and address these claims separate and apart from non-infringed claims 1 and 10.  Second, the Commission determined to review and “modify the ID but affirm the finding that Motorola has demonstrated by clear and convincing evidence that the asserted claims of the ‘607 patent are invalid under 35 U.S.C. § 103.”  Third, the Commission affirmed the ALJ’s finding of direct infringement of claims 1, 3, and 5 of the ‘430 patent, “but [found] that the analysis of infringement is incomplete in the ID because the ID’s analysis does not address the Commission’s decision in Certain Electronic Devices with Image Processing Systems, Components Thereof, And Associated Software, 337-TA-724, Comm. Op. at 10-20 (Dec. 21, 2011).  Lastly, the Commission denied Apple’s motion for leave to file its public interest comments out of time as moot.  The notice issued by the Commission released only the information noted above.  We will provide additional information once the public version of the Commission's opinion issues in its entirety.
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ITC Decides To Review-In-Part Final Initial Determination In Certain Liquid Crystal Display Devices (337-TA-741/749)

By Eric Schweibenz
|
Apr
03
On March 26, 2012, the International Trade Commission (the “Commission”) issued a notice determining to review-in-part the final initial determination finding a violation of Section 337 in Certain Liquid Crystal Display Devices, Including Monitors, Televisions, Modules, and Components Thereof(Inv. No. 337-TA-741/749). By way of background, the Complainants in this matter are Thomson Licensing SAS and Thomson Licensing LLC (collectively, “Thomson”), and the Respondents are Chimei Innolux Corp., Chi Mei Optoelectronics USA, Inc., Innolux Corp. (collectively, “CMI”); Qisda Corp., Qisda America Corp., Qisda (Suzhou) Co., Ltd. (collectively, “Qisda”); BenQ Corp., BenQ America Corp., BenQ Latin America (collectively, “BenQ”); AU Optronics Corp., AU Optronics Corp. America (collectively “AUO”); Realtek Semiconductor Corp. (“Realtek”); and MStar Semiconductor, Inc (“MStar”).  Thomson accused Respondents of infringing certain claims of U.S. Patent Nos. 6,121,941 (the ‘941 patent), 5,978,063 (the ‘063 patent), 5,648,674 (the ‘674 patent), 5,621,556 (the ‘556 patent), and 5,375,006 (the ‘006 patent).  On January 12, 2012, ALJ Robert K. Rogers, Jr. issued an Initial Determination (“ID”) finding a violation of Section 337 with respect to the ‘674 patent.  According to the notice, the “ALJ found that the CMI accused products including the Type 2 Array Circuitry and any Qisda or BenQ accused products incorporating these CMI accused products infringe the asserted claims of the ‘674 patent.”  No other accused products were found to infringe the ‘674 patent or the other patents at issue.  See our January 17, 2012 post for more details.  ALJ Rogers also determined that the asserted claims of the ‘674, ‘556, and ‘941 patents are not invalid, but that certain claims of the ‘063 and ‘006 patents are invalid for obviousness and anticipation, respectively.  Lastly, the ALJ found that a domestic industry exists with respect to the asserted patents.    According to the notice, on January 25, 2012, “Thomson, CMI, MStar, Realtek, and AUO filed a petition for review of the ID.  BenQ and Qisda filed a joint petition for review incorporating the other Respondents’ arguments by reference.”  After examining the record of the investigation, including the ID and the parties’ submission, the Commission determined to review the ID in part.  In particular, the Commission determined to review 16 individual findings of the ALJ including, inter alia, issues related to anticipation and obviousness of the asserted claims, the status of certain references as prior art, claim construction, infringement, the exclusion of certain evidence, and the economic prong of the domestic industry requirement.  The notice states that the parties are requested to submit briefing on the issues under review and on remedy, the public interest, and bonding.  The notice further states that the Commission is particularly interested in responses to twenty questions listed in the notice. Written submissions are due by April 9, 2012, with reply submission due by April 16, 2012.
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ITC Decides To Review In Part Initial Determination In Certain Reduced Ignition Proclivity Cigarette Paper Wrappers (337-TA-756)

By Eric Schweibenz
|
Apr
04
On April 2, 2012, the International Trade Commission (the “Commission”) issued a notice determining to review in part an Initial Determination (“ID”) issued by ALJ E. James Gildea on February 1, 2012 finding no violation of Section 337 in Certain Reduced Ignition Proclivity Cigarette Paper Wrappers and Products Containing Same(Inv. No. 337-TA-756).  By way of background, the Complainant in this investigation is Schweitzer-Mauduit International, Inc. (“Schweitzer”) and the remaining Respondents are Julius Glatz GmbH, LIPtec GmbH, and KneX Worldwide LLC (collectively, “Glatz”).  In the ID, ALJ Gildea determined that no violation of Section 337 had occurred by Glatz in the importation into the U.S., sale for importation, or sale within the U.S. after importation of certain reduced ignition proclivity cigarette paper wrappers and products containing same that allegedly infringe U.S. Patent Nos. 5,878,753 (the ‘753 patent) and 6,725,867 (the ‘867 patent).  See our February 29, 2012 post for more details. According to the April 2 notice, Schweitzer filed a petition for review of the ID and Glatz filed a contingent petition for review of the ID.  Each party filed a response to the petitions for review. After examining the record of the investigation, including the ID and the parties’ submissions, the Commission determined to review the ID in part.  In particular, with respect to the ‘753 patent, the Commission determined to review the construction of the term “gradually” in the asserted claims and the issues of direct and indirect infringement, obviousness, definiteness, utility, and the technical prong of the domestic industry requirement.  With respect to the ‘867 patent, the Commission determined to review the construction of the term “film forming composition” in the asserted claims and the issues of direct and indirect infringement, priority date, statutory bar under 35 U.S.C. § 102(b), anticipation, obviousness, written description, enablement, and the technical prong of the domestic industry requirement. The notice states that the parties are requested to brief their positions on seven questions listed in the notice.  The notice also requests briefing on remedy, the public interest, and bonding.  Written submissions are due by April 16, 2012, with reply submissions due by April 23, 2012.
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ITC Grants Request For Reconsideration And Affirms Reversal Of Initial Determination Granting Unopposed Motion To Amend Notice Of Investigation In Certain Communication Equipment (337-TA-817)

By Eric Schweibenz
|
Apr
06
On March 28, 2012, the International Trade Commission (the “Commission”) issued a notice determining to grant Complainant ChriMar Systems, Inc. d/b/a CMS Technologies’ (“ChriMar”) request for reconsideration and affirm the Commission’s determination to reverse an Initial Determination (“ID”) granting the Commission Investigative Staff’s (“OUII”) unopposed motion to amend the Notice of Investigation in Certain Communication Equipment, Components Thereof, and Products Containing the Same, Including Power Over Ethernet Telephones, Switches, Wireless Access Points, Routers and Other Devices Used in LANs, and Cameras(Inv. No. 337-TA-817). By way of background, the Commission instituted this investigation on December 7, 2011 based on ChriMar’s complaint of November 1, 2011.  See our December 10, 2011 post for more details.  On January 3, 2012, ALJ Theodore R. Essex issued an ID granting OUII’s unopposed motion to amend the Notice of Investigation.  Specifically, OUII sought to add, in the “Scope of the Investigation” section, the underlined portion of the following language:  “whether an industry in the United States exists or is in the process of being established as required by subsection (a)(2) of section 337.”  According to the March 28 notice, ALJ Essex explained that there is good cause to amend the Notice of Investigation because “the error was inadvertent and the investigation is still in its early stages.”  The ALJ also determined that the “amendment will not prejudice the public interest or any of the rights of the parties in the investigation.” On January 27, 2012, the Commission determined to review and reverse ALJ Essex’s ID and deny the motion to amend the Notice of Investigation.  On February 1, 2012, ChriMar filed a petition for reconsideration requesting that the Commission reconsider its decision.  On February 8, 2012, OUII submitted a response to ChriMar’s request, asserting that it would be appropriate for the Commission to consider the request. After considering ChriMar’s request for reconsideration and OUII’s response, the Commission determined to grant ChriMar’s request because ChriMar had not previously had an opportunity to present arguments on the issues presented.  On reconsideration, the Commission determined to affirm its earlier decision.  According to the notice, “the ALJ’s conclusion regarding inadvertence was not supported by the facts, and therefore it is clearly erroneous.”  Moreover, the Commission found that ChriMar’s complaint only includes a description of the relevant domestic industry that “allegedly exists,” and therefore the complaint does not meet the requirements of Commission Rule 210.12(a)(6)(i).  Accordingly, the Commission maintained its reversal of the ID without prejudice to the parties’ right to move to amend the complaint and Notice of Investigation in a timely manner.
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ITC Issues Limited Exclusion Order And Cease And Desist Order In Certain Starter Motors And Alternators (337-TA-755)

By Eric Schweibenz
|
Apr
06
On March 30, 2012, the International Trade Commission (the “Commission”) issued a notice of issuance of a limited exclusion order and a cease and desist order in Certain Starter Motors and Alternators (Inv. No. 337-TA-755). By way of background, the Complainants in this investigation are Remy International, Inc. and Remy Technologies, L.L.C. (collectively, “Remy”) and the remaining Respondent is American Automotive Parts, Inc. (“AAP”).  According to the notice, on December 22, 2011, ALJ Robert K. Rogers, Jr. issued an initial determination (“ID”) finding AAP in default for failure to respond to the complaint and Notice of Investigation or to the ALJ’s order to show cause.  The Commission determined not to review the ID and requested briefing on remedy, the public interest, and bonding with respect to AAP. According to the notice, both Remy and the Commission Investigative Staff (“OUII”) submitted briefing on remedy, the public interest, and bonding along with proposed orders on March 2, 2012.  OUII also submitted a reply brief on March 9, 2012, containing revised orders. In the notice, the Commission states that it “has determined that the appropriate form of relief is the following:  (1) a limited exclusion order prohibiting the unlicensed entry of alternators that infringe [certain claims of U.S. Patent Nos. 5,268,605, 5,315,195, and 5,453,648], which are manufactured abroad by or on behalf of, or are imported by or on behalf of, AAP, or any of its affiliated companies, parents, subsidiaries, licensees, contractors, or other related business entities, or its successors or assigns; and (2) a cease and desist order prohibiting AAP from conducting any of the following activities in the United States:  importing, selling, marketing, advertising, distributing, offering for sale, transferring (except for exportation), and soliciting U.S. agents or distributors for alternators that infringe [certain claims of U.S. Patent Nos. 5,268,605, 5,315,195, and 5,453,648].”  The Commission further determined that the public interest factors do not preclude issuance of the limited exclusion order or the cease and desist order and that a bond of 100 percent of the entered value of the covered products is required to permit temporary importation during the Presidential review period.  Lastly, the Commission terminated the investigation.
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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.