Commission Notices

ITC Determines Not To Review Initial Determination Terminating Investigation Based On Settlement Agreement In Certain Video Game Machines (337-TA-658)

By Eric Schweibenz
|
Sep
29
On September 28, 2009, the International Trade Commission issued a notice determining not to review Chief ALJ Paul J. Luckern’s September 8, 2009 Initial Determination (“ID”) terminating the investigation based on a settlement agreement in Certain Video Game Machines And Related Three-Dimensional Pointing Devices (Inv. No. 337-TA-658). By way of background, Complainant Hillcrest Laboratories, Inc. (“Hillcrest”) filed a complaint alleging violations of Section 337 in the importation into the U.S., the sale for importation, and the sale within the U.S. after importation of certain video game machines and related three-dimensional pointing devices by reason of infringement of certain claims of U.S. Patent Nos. 7,139,983; 7,158,118; 7,262,760; and 7,414,611.  On September 23, 2008, the ITC instituted this investigation naming Nintendo Co., Ltd. and Nintendo of America, Inc. (collectively, “Nintendo”) as respondents. On August 21, 2009, Hillcrest and Nintendo jointly moved to terminate the investigation based on a settlement agreement.  See our August 25 post for more details.  On September 8, 2009, ALJ Luckern issued his ID terminating the investigation. In the September 28 notice, the ITC “determined not to review the ID.”
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ITC Determines Not To Review Initial Determination Granting Motion to Amend Complaint And Notice Of Investigation To Add Respondents in Certain Energy Drink Products (337-TA-678)

By Eric Schweibenz
|
Sep
30
On September 30, 2009, the International Trade Commission issued a notice determining not to review the September 8, 2009 Initial Determination (“ID”) issued by Chief ALJ Paul J. Luckern granting a motion filed by Complainants Red Bull GmbH and Red Bull North America (collectively, “Red Bull”) to amend the complaint and notice of investigation to add six new respondents in Certain Energy Drink Products (Inv. No. 337-TA-678). As explained in our September 11 post, Red Bull’s motion sought to add the following respondents:  Posh Nosh Imports (USA), Greenwich, Inc., Advantage Food Distributors, Ltd., Wheeler Trading, Inc., Avalon International General Trading, LLC, and Central Supply, Inc. (“Central”).  According to the notice, no petitions for review were filed in connection with ALJ Luckern’s September 8 ID.  Accordingly, in the September 30 notice, the ITC “determined not to review the subject ID.”
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ITC Decides To Review Initial Determination In Certain Variable Speed Wind Turbines (337-TA-641)

By Eric Schweibenz
|
Oct
08
On October 8, 2009, the International Trade Commission issued a notice determining to review ALJ Carl C. Charneski’s August 7, 2009 initial determination (“ID”) finding violation of Section 337 in Certain Variable Speed Wind Turbines and Components Thereof (Inv. No. 337-TA-641). By way of background, and as explained in our August 10 post, the Complainant in this investigation is General Electric Co. and the Respondents are Mitsubishi Heavy Industries, Ltd. (“MHI”), Mitsubishi Heavy Industries America, Inc. (“MHIA”), and Mitsubishi Power System, Inc. (“MPSA”).  In the ID, ALJ Charneski determined that a violation of Section 337 occurred by MHI and MPSA with respect to claim 121 of the asserted ‘039 patent, and claim 15 of the asserted ‘985 patent.  ALJ Charneski further determined in the ID that there was no violation with respect to these claims by MHIA.  Additionally, ALJ Charneski determined in the ID that there was no violation of Section 337 by any party with respect to claims 5, 7, and 8 of the asserted ‘221 patent. In the October 8 notice, the Commission “determined to review the final ID, except the issue of importation and the intent finding underlying the ALJ’s inequitable conduct determination.”  In addition, the notice requests briefing on three questions of particular interest to the Commission. The parties’ briefs to the Commission are due by October 22, 2009, with reply submissions due by November 2, 2009.
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ITC Decides To Review And Affirm Initial Determination In Certain 3G Mobile Handsets (337-TA-613)

By Eric Schweibenz
|
Oct
19
On October 16, 2009, the International Trade Commission issued a notice stating that it had determined to review and based on that review, affirm Chief ALJ Paul J. Luckern’s August 14, 2009 Final Initial and Recommended Determinations (“ID”) in Certain 3G Mobile Handsets and Components (Inv. No. 337-TA-613). By way of background, and as explained in our August 17 and September 23 posts, the Complainants in this investigation are InterDigital Communications, LLC and InterDigital Technology Corp. (“InterDigital”) and the Respondents are Nokia Inc. and Nokia Corp. (“Nokia”).  In the ID, ALJ Luckern held that no violation of Section 337 had occurred in connection with the importation into the U.S., the sale for importation, or the sale within the U.S. after importation of certain 3G mobile handsets and components.  Specifically, ALJ Luckern determined that the asserted claims of the ‘004, ‘966, ‘847, and ‘579 patents were not infringed.  He also found that the claims were not invalid and that a domestic industry exists with respect to the asserted patents. In the October 16 notice, the Commission stated that it determined to review the ID in part.  Specifically, the Commission determined to review ALJ Luckern’s claim construction of the terms “synchronize,” found in certain claims of the asserted ‘847 patent, and “access signal,” found in certain claims of the asserted ‘847 and ‘004 patents.  The Commission also “determined to review the ALJ’s validity determinations with respect to the four asserted patents.”  On review, the Commission affirmed the ALJ’s determination of no violation and took “no position” with respect to validity and the term “synchronize.” Additionally, the Commission modified the ALJ’s construction of “access signal” to clarify that the ALJ’s construction “does not read out the situation where the ‘access signal’ may continue to be transmitted after the power ramp-up procedure ends.”  In this respect the “Commission agrees that the ‘access signal’ is transmitted during the power ramp-up procedure and that the ‘access signal’ is a separate transmission from any other call set up messages that a subscriber unit pursuant to the Power Ramp-Up Patents transmits to a base station during a communication event.”  The Commission also determined that the asserted ‘004 and ‘847 patents “do not require that the transmission of the ‘access signal’ ends when the power ramp-up procedure ends.”  Finally, the Commission determined “not to review the remaining issues decided in the ID.”
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ITC Issues Final Determination Of No Violation In Certain Flash Memory Controllers (337-TA-619)

By Eric Schweibenz
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Oct
26
On October 23, 2009, the International Trade Commission issued a notice stating that it has determined that there has been no violation of Section 337 in Certain Flash Memory Controllers, Drives, Memory Cards, and Media Players and Products Containing Same (Inv. No. 337-TA-619). By way of background, and as explained in our April 14 and August 25 posts, this investigation was instituted on December 12, 2007, based on the complaint of SanDisk Corp. (“SanDisk”) of Milpitas, California.  According to the notice, over 50 respondents were named in the complaint, and approximately half of the named respondents either settled out of the investigation or defaulted.  On August 24, 2009, the International Trade Commission issued a notice determining to review in part the April 10 final Initial Determination issued by ALJ Charles E. Bullock. According to the October 23 notice, the Commission determined to “(1) reverse the ALJ’s finding that claim 17 of the ‘424 patent does not cover single-page updates; (2) reverse the ALJ’s finding that the claim term ‘reading and assembling data from the first and second plurality of pages’ as recited in claim 20 of the ‘424 patent excludes the so-called table method as disclosed in Figure 12; (3) affirm the ALJ’s finding that the accused products do not infringe the asserted claims of the ‘424 patent; and (4) affirm the ALJ’s finding that none of the asserted claims of the ‘424 patent were proven to be invalid as anticipated or obvious in view of the prior art considered by the ALJ.”  The Commission further determined that “[g]iven the Commission’s affirmance of the ALJ’s determination that SanDisk failed to establish that the accused controllers infringe claim 17 of the ‘424 patent, the Commission declines to reach the issue of whether the ALJ should have considered the Sinclair PCT publication as evidence of prior art to claim 17 of the ‘424 patent.”
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ITC Expands Deadline For Public Submissions On Remedy, The Public Interest, And Bonding In Certain Variable Speed Wind Turbines (337-TA-641)

By Eric Schweibenz
|
Oct
26
On October 23, 2009, the International Trade Commission issued a notice determining to extend the deadline for public submissions on remedy, the public interest, and bonding, and for responses to all remedy, public interest, and bonding submissions in Certain Variable Speed Wind Turbines and Components Thereof (Inv. No. 337-TA-641). By way of background, and as explained in our October 22 post, the Complainant in this investigation is General Electric Co. and the Respondents are Mitsubishi Heavy Industries, Ltd., Mitsubishi Heavy Industries America, Inc., and Mitsubishi Power System, Inc.  On August 7, 2009, ALJ Carl C. Charneski issued his final initial determination (“ID”) finding a violation of Section 337.  See our August 10 post for more details.  Additionally, on October 8, 2009, the Commission issued notice of its decision to review-in-part the ID.  See our October 8 post for more details. In the October 23 notice, the Commission determined “(a) The public may submit comments on remedy, the public interest, and bonding until November 2, 2009.  (b) The parties and the public may reply to any submissions on remedy, the public interest, and bonding until November 9, 2009.  (c) The parties’ schedule for briefing on any issues related to violation is unaffected by this extension.”
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ITC Decides To Review Initial Determination In Certain Semiconductor Chips With Minimized Chip Package Size (337-TA-630)

By Eric Schweibenz
|
Nov
02
On October 30, 2009, the International Trade Commission issued a notice determining to review in part the final Initial Determination (“ID”) issued by ALJ Theodore R. Essex on August 28, 2009, in Certain Semiconductor Chips With Minimized Chip Package Size and Products Containing Same (Inv. No. 337-TA-630). This investigation was instituted on January 14, 2008, based on the complaint of Tessera, Inc. (Tessera) of San Jose, California.  Eighteen respondents were named in the complaint, and several of the named respondents either settled out of the investigation or defaulted. As indicated in our September 1 and October 1 posts, on August 28, 2009, ALJ Essex issued his ID, finding no violation of Section 337 had occurred based on the importation into the U.S., the sale for importation, or the sale within the U.S. after importation of certain semiconductor chips with minimized chip package size and products containing same in connection with certain claims of U.S. Patent No. 5,663,106 (the ‘106 patent), U.S. Patent No. 5,679,977 (the ‘977 patent), and U.S. Patent No. 6,133,627 (the ‘627 patent).  Further, ALJ Essex determined that a domestic industry exists that practices the patents-in-suit. On September 17, 2009, Tessera and the Commission Investigative Staff filed petitions for review of the ID, and the remaining respondents in the investigation filed contingent petitions for review of the ID.  On October 1, 2009, the parties filed responses to the various petitions and contingent petitions for review. After examining the record of the investigation, including the ID, the petitions for review, and the responses to the petitions for review, the Commission decided to review the ID in part.  In particular, the Commission determined to review:  (i) ALJ Essex’s construction of the claim term “top layer” in claim 1 of the ‘106 patent, and its effect on the findings relating to infringement, invalidity, and domestic industry; (ii) ALJ Essex’s construction of the claim term “thereon” in claim 1 of the ‘106 patent, and its effect on the findings relating to infringement, invalidity, and domestic industry; (iii) ALJ Essex’s finding that the Direct Loading testing methodology employed by Tessera’s expert to prove infringement is unreliable; and (iv) ALJ Essex’s finding that the 1989 Motorola OMPAC 68-pin chip package fails to anticipate claims 17 and 18 of the ‘977 patent.  In addition, the notice requests briefing on four questions of particular interest to the Commission. The parties’ briefs to the Commission are due by November 13, 2009, with reply submissions due by November 20, 2009.
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ITC Decides Not To Review ALJ’s Grant Of Rambus’ Summary Determination Motion That Its Licensing Activities Satisfy The Domestic Industry Requirement In Certain Semiconductor Chips (337-TA-661)

By Eric Schweibenz
|
Nov
09
On November 6, 2009, the International Trade Commission issued a notice determining not to review the October 7, 2009 Initial Determination (“ID”) of ALJ Theodore R. Essex finding that Complainant Rambus Inc.’s (“Rambus”) licensing activities in the United States satisfied the domestic industry requirement in Certain Semiconductor Chips Having Synchronous Dynamic Random Access Memory Controllers and Products Containing Same (Inv. No. 337-TA-661). By way of background, Rambus filed a complaint on December 10, 2008 alleging violations of Section 337 in the importation into the U.S., the sale for importation, and the sale within the U.S. after importation of certain semiconductor chips having synchronous dynamic random access memory controllers and products containing same by reason of infringement of certain claims of various U.S. patents.  On June 15, 2009, Rambus moved for summary determination that its licensing activities in the United States satisfy the domestic industry requirement of 19 U.S.C. § 1337(a)(3)(C) as to the asserted patents.  On June 30, 2009, the Commission Investigative Staff (“Staff’) filed a response in support of the motion, and Respondents filed a response opposing the motion. On October 7, 2009, ALJ Essex issued the ID granting Rambus’ summary determination motion.  On October 16, 2009, Respondents petitioned for review of the ID.  Rambus and the Staff filed responses to Respondents’ petition for review on October 23, 2009. According to the November 6 notice, the “Commission has determined not to review the ID.”
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ITC Extends Target Date In Certain Semiconductor Integrated Circuits (337-TA-665)

By Eric Schweibenz
|
Nov
12
On November 10, 2009, the International Trade Commission issued a notice deciding to extend the target date and the date for determining whether to review the final initial determination (“ID”) in Certain Semiconductor Integrated Circuits and Products Containing Same (Inv. No. 337-TA-665). The Complainant in this investigation is Qimonda AG and the Respondents are LSI Corporation, Seagate Technology, Seagate Technology (US) Holdings, Inc., Seagate Technology LLC, Seagate Memory Products (US) Corporation, Seagate Technologies International (Singapore), and Seagate (US) LLC (collectively “Respondents”).  On October 14, 2009, ALJ Robert K. Rogers, Jr. issued the ID finding that there was no violation of Section 337 by Respondents.  See our October 19 post for more details.  The investigation currently has a target date of February 16, 2010. According to the November 10 notice, the ITC “determined to extend the target date until March 29, 2010, and to extend the date by which it determines whether to review the final ID until January 29, 2010.”
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ITC Determines Not To Review Initial Determination Granting Saxon’s Summary Determination Motion Regarding The Economic Prong Of The Domestic Industry Requirement (337-TA-667/673)

By Eric Schweibenz
|
Nov
17
On November 17, 2009, 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-667/337-TA-673).  According to the notice, Saxon filed its motion based on the activities of its licensee, Motorola, Inc., pursuant to 19 U.S.C. § 1337(a)(3)(C). This case and, in particular, this issue as to whether Saxon could satisfy the economic prong of the domestic industry requirement has been closely watched by many ITC practitioners since Saxon is a patent-holding company whose only business is licensing and enforcing patents.  See, for example, this article, in which a reporter for IP Law & Business noted that Saxon was “pushing the envelope in terms of what constitutes a ‘domestic industry.’”  See also our February 24, 2009 post. By determining not to review the ID, the Commission appears to have confirmed that patent holding companies with similar domestic industry activities can enforce intellectual property rights at the ITC.
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ITC Extends Target Date In Certain Variable Speed Wind Turbines (337-TA-641)

By Eric Schweibenz
|
Nov
23
On November 19, 2009, the International Trade Commission issued a notice deciding to extend the target date for completion of the investigation in Certain Variable Speed Wind Turbines and Components Thereof (Inv. No. 337-TA-641). By way of background, and as explained in our October 8 post, the Complainant in this investigation is General Electric Co. and the Respondents are Mitsubishi Heavy Industries, Ltd., Mitsubishi Heavy Industries America, Inc., and Mitsubishi Power System, Inc.  On August 7, 2009, ALJ Carl C. Charneski issued an initial determination (“ID”) finding violation of Section 337.  On October 8, 2009, the Commission issued a notice determining to review the ID. In the November 19 notice, the Commission “determined to extend the target date for completion of the investigation by eleven days to December 18, 2009.”
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ITC Decides Not To Review Enforcement Initial Determination In Certain R-134a Coolant (337-TA-623)

By Eric Schweibenz
|
Nov
25
On November 23, 2009, the International Trade Commission issued a notice determining not to review Chief ALJ Paul J. Luckern’s September 21, 2009 Enforcement Initial Determination (“EID”) in Certain R-134a Coolant (Otherwise Known as 1,1,1,2-Tetrafluoroethane) (Inv. No. 337-TA-623). By way of background, INEOS Fluor Holdings Ltd., INEOS Fluor Ltd. and INEOS Fluor Americas LLC (collectively, “INEOS”) filed a complaint in December 2007 alleging violations of Section 337 by several respondents including Sinochem Environmental Protection Chemicals (Taicang) Co., Ltd. (“Sinochem”) in the importation into the U.S., the sale for importation, and the sale within the U.S. after importation of certain R-134a coolant (otherwise known as 1,1,1,2-tetrafluoroethane) by reason of infringement of certain patents, including U.S. Patent No. 5,559,276.  See our April 6 post for more details.  On August 15, 2008, the Sinochem respondents moved for partial termination of the investigation based on the entry of a consent order specific to their “old” process for manufacture of R-134a coolant.  On August 20, 2008, the ALJ issued an initial determination (“ID”) granting the motion and terminating the investigation with respect to the “old” process.  The Commission determined not to review the ALJ’s ID and issued a Consent Order on September 11, 2008.  On December 12, 2008, INEOS filed a complaint, requesting that the Commission institute a formal enforcement proceeding to investigate an alleged violation of the Consent Order relating to the “old” process.  On February 18, 2009, the Commission issued a notice instituting a formal enforcement proceeding.  On September 21, 2009, ALJ Luckern issued the EID determining that Sinochem did not violate the Consent Order issued by the Commission on September 11, 2008.  See our October 9 post for more details. According to the November 23 notice, the “Commission has determined not to review the EID.”
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ITC Decides To Review Initial Determination In Certain Automotive Multimedia Display And Navigation Systems (337-TA-657)

By Eric Schweibenz
|
Nov
25
On November 23, 2009, the International Trade Commission issued a notice determining to review in part the final Initial Determination (“ID”) issued by ALJ Theodore R. Essex on September 22, 2009 in Certain Automotive Multimedia Display and Navigation Systems, Components Thereof, and Products Containing Same (Inv. No. 337-TA-657). By way of background, the Complainant in this investigation is Honeywell International, Inc. (“Honeywell”).  The original Respondents were Alpine Electronics, Inc.; Alpine Electronics of America, Inc.; Denso Corporation; Denso International America, Inc.; Pioneer Corp.; Pioneer Electronics (USA) Inc.; Kenwood Corp.; and Kenwood USA Corp.  However, all of the Respondents other than Pioneer Corp. and Pioneer Electronics (USA) Inc. (collectively, “Pioneer”) were terminated from the investigation before the issuance of the ID as a result of settlement agreements with Honeywell. ALJ Essex issued the ID in this investigation on September 22, 2009, finding no violation of Section 337 in the importation into the U.S., the sale for importation, or the sale within the U.S. after importation of certain automotive multimedia display and navigation systems, components thereof, and products containing same.  According to the ID, ALJ Essex held that Pioneer did not infringe the asserted claims of U.S. Patent Nos. 6,308,132 (the ‘132 patent); 5,923,286 (the ‘286 patent); 6,664,945 (the ‘945 patent); and 6,289,277 (the ‘277 patent).  Further, ALJ Essex held that many of the asserted claims were invalid for various reasons including anticipation, indefiniteness, failure to satisfy the best mode requirement, the public use bar, and the on-sale bar.  Finally, ALJ Essex found that a domestic industry existed for all four asserted patents based on Honeywell’s licensing activities.  See our November 4 post for more details. On October 5, 2009, Honeywell filed a petition for review of the ID and Pioneer filed a contingent petition for review of the ID.  On October 13, 2009, Honeywell and Pioneer filed responses to each other’s petition, and the Commission Investigative Staff filed a response to Honeywell’s petition. After examining the record of the investigation, including the ID, the petitions for review, and the responses to the petitions for review, the Commission decided to review the ID in part.  In particular, the Commission determined to review:  (i) the construction of the ‘286 patent’s claim terms “inertial reference system,” and “based upon the IRS position signal, the velocity of the vehicle and the acceleration of the vehicle”; (ii) the construction of the ‘945 patent’s claim terms “radio select means,” “selectable alphanumeric text portion,” “selectable frequency tuning portion,” and “storage select means”; (iii) the finding that the asserted claims of the ‘132 patent are anticipated under 35 U.S.C. § 102(b) by U.S. Patent No. 6,092,076 to McDonough; (iv) the finding that claim 5 of the ‘286 patent is invalid under 35 U.S.C. § 112 ¶ 1, for failure to disclose the best mode; (v) the finding that claim 5 of the ‘286 is not infringed by the accused products; (vi) the finding that claim 1 of the ‘945 patent is not anticipated under 35 U.S.C. § 102 by the Alpine CVA-1000 system, U.S. Patent No. 6,725,231 to Obradovich, or U.S. Patent No. 7,398,051 to Bates; (vii) the finding that the accused products do not infringe claim 1 of the ‘945 patent; (viii) the finding that the accused products do not infringe the asserted claims of the ‘277 patent; (ix) the finding that claim 9 of the ‘277 patent is anticipated under 35 U.S.C. § 102(b) by the 1998 Lexus GS 400; and (x) the finding that claim 9 of the ‘277 patent is not invalid under 35 U.S.C. § 103(a) over the 1998 Lexus GS 400, in view of U.S. Patent No. 6,725,231 to Obradovich, the 1997 VICS instruction manual, or the Xanavi manual. According to the notice, the Commission determined “to review and to take no position on whether the asserted claims of the ‘132 patent are invalid because of an on-sale bar under 35 U.S.C. § 102(b)” and further “determined not to review the remainder of the ID.” Additionally, the notice requests briefing on five questions of particular interest to the Commission. The parties’ briefs to the Commission are due by December 7, 2009, with reply submissions due by December 14, 2009.
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Commission Decides To Review Initial Determination In Certain Semiconductor Integration Circuits Using Tungsten Metallization (337-TA-648)

By Eric Schweibenz
|
Nov
30
On November 23, 2009, the International Trade Commission issued a notice determining to review-in-part a final initial determination (“ID”) finding no violation of Section 337 and determining to remand a portion of the investigation to ALJ Carl C. Charneski in Certain Semiconductor Integration Circuits Using Tungsten Metallization and Products Containing Same (Inv. No. 337-TA-648). By way of background, the Complainants in this investigation are LSI Corporation and Agere Systems Inc. (collectively, “LSI”) and the Respondents are Tower Semiconductor, Ltd., Jazz Semiconductor (“Jazz”), Powership Semiconductor Corporation, Grace Semiconductor Manufacturing Corporation, Integrated Device Technology, Inc., Spansion, Inc., and Nanya Technology Corporation (collectively, the “Respondents”).  On September 21, 2009, ALJ Charneski issued an ID finding no violation of Section 337.  In the ID, ALJ Charneski concluded that each accused process was covered by one or more of asserted claims 1, 3, and 4 of U.S. Patent No. 5,227,335 (the ‘335 patent), but also that all asserted claims were anticipated under 35 U.S.C. § 102(g) in view of the IBM Process A prior art.  On October 5, 2009, LSI, the Respondents, and the Commission Investigative Staff (the “Staff”) filed petitions for review of the ID.  On October 13, 2009, LSI, the Respondents and the Staff filed responses to the other parties’ petitions. In the November 23 notice, the Commission determined to review (1) invalidity of claims 1, 3, and 4 of the ‘335 patent under 35 U.S.C. §§ 102(g) and 103 with respect to the IBM Process A, IBM Process B, and AMD prior art; and (2) Jazz’s stipulation regarding whether its process meets the complete, third recited step of claim 1, i.e., “depositing a tungsten layer by chemical vapor deposition, said tungsten layer covering said glue layer on said dielectric and said exposed material.”  According to the notice, the “Commission has determined not to review the remainder of the ID.” Additionally, “the Commission has determined to issue an order remanding the investigation to the ALJ for further proceedings relating to whether claim 4 is rendered obvious by IBM Process A in light of the other prior art asserted by respondents.”  In this respect, the “Commission has instructed the ALJ to make his determination on remand at the earliest practicable time, and to extend the target date of the above-captioned investigation as he deems necessary to accommodate the remand proceedings.”  The Commission further determined that the parties’ written submissions on the ALJ’s remand determination are due within fourteen days after service of the ALJ’s determination and responses to the written submissions are due within seven days after service of the written submissions.
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ITC Issues Opinion On Remedy, The Public Interest, And Bonding In Certain Composite Wear Components (337-TA-644)

By Eric Schweibenz
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Nov
30
On November 24, 2009, the International Trade Commission issued the public version of its opinion on the issues of remedy, the public interest, and bonding in Certain Composite Wear Components and Products Containing Same (Inv. No. 337-TA-644).  The ITC also issued on November 24 a notice of Issuance of Limited Exclusion Order and Cease and Desist Order; Termination of the Investigation. By way of background, the Complainant in this investigation is Magotteaux International S/A and Magotteaux, Inc. (collectively “Magotteaux”) and the respondents are Fonderie Acciaierie Rioale S.P.A. (“FAR”), AIA Engineering Ltd., and Vega Industries (collectively, the “AIAE Respondents”).  FAR was terminated from the investigation on the basis of a settlement agreement.  On May 8, 2009, ALJ Theodore R. Essex issued an Initial Determination (“ID”) finding (i) the AIAE Respondents in default under Commission Rule 210.16(a)(2) based on failure to participate in discovery; (ii) the AIAE Respondents’ conduct in the investigation warranted adverse inferences under Commission Rule 210.17; and (iii) that the AIAE Respondents were in violation of Section 337 on that basis.  See our July 8 and July 21 posts for more details.  On July 7, 2009, the Commission issued a notice determining not to review the ID, and requesting written submissions regarding the form of remedy, if any, that should be ordered.  The parties to the investigation and the Commission Investigative Staff filed submissions and response submissions concerning remedy, the public interest, and bonding on July 22, 2009, and July 30, 2009, respectively. In its November 24 opinion and notice, the Commission determined that the appropriate form of relief is a limited exclusion order and a cease and desist order.  Specifically, the “limited exclusion order prohibits the unlicensed entry for consumption of composite wear components and products containing same that are covered by one or more of claims 12-13 and 16-21 of the ‘998 patent and that are manufactured abroad by or on behalf of, or are imported by or on behalf of, AIA Engineering Limited or Vega Industries or any of their affiliated companies, parents, subsidiaries, or other related business entities, or their successors or assigns.  The cease and desist order covers products that infringe claims 12-13 and 16-21 of the ‘998 patent and is directed to defaulting domestic respondent Vega Industries and any of its principals, stockholders, officers, directors, employees, agents, licensees, distributors, controlled (whether by stock ownership or otherwise) and majority owned business entities, successors, and assigns.”  The Commission also determined that the public interest factors did not preclude issuance of the limited exclusion order or the cease and desist order.
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ITC Decides Not To Review Initial Determination Terminating The Investigation In Certain Light Emitting Diode Chips (337-TA-674)

By Eric Schweibenz
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Dec
09
Further to our December 4 post, on December 9, 2009, the International Trade Commission issued a notice determining not to review Chief ALJ Paul J. Luckern’s November 13, 2009 Order No. 29 terminating the investigation based on a settlement agreement in Certain Light Emitting Diode Chips, Laser Diode Chips and Products Containing Same (Inv. No. 337-TA-674).
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ITC Institutes Formal Enforcement Proceeding In Certain Liquid Crystal Display Devices (337-TA-631)

By Eric Schweibenz
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Dec
15
On December 14, 2009, the International Trade Commission issued a notice instituting a formal enforcement proceeding relating to a limited exclusion order and cease and desist orders issued in connection with the Final Determination in Certain Liquid Crystal Display Devices and Products Containing the Same (Inv. No. 337-TA-631). By way of background, this investigation was instituted on January 25, 2008, based on a complaint filed by Samsung Electronics Co., Ltd. (“Samsung”) alleging violation of Section 337 by Sharp Corporation, Sharp Electronics Corporation (“SEC”), and Sharp Electronics Manufacturing Company of America, Inc. (“SEMA”) (collectively, “Sharp”).  On January 26, 2009, Chief ALJ Paul J. Luckern issued the final initial determination (“ID”) finding a violation of Section 337 by Sharp as to U.S. Patent Nos. 6,771,344 (the ‘344 patent) and 6,937,311.  On June 24, 2009, after reviewing in part the ID, the Commission determined that there was a violation of Section 337 as to the ‘344 patent and issued a limited exclusion order directed to all Sharp products found in violation and cease and desist orders directed to SEC and SEMA.  The limited exclusion order prohibits the unlicensed entry of liquid crystal display (“LCD”) devices, including display panels and modules, and LCD televisions or professional displays containing the same that infringe the asserted claims of the ‘344 patent that are manufactured abroad by or on behalf of, or imported by or on behalf of, any of the Sharp respondents.  The cease and desist orders prohibit SEC and SEMA from engaging in certain activities in the United States related to the infringing LCD devices.  On December 1, 2009, Samsung filed a complaint for enforcement proceedings alleging that Sharp violated the Commission’s limited exclusion order and cease and desist orders by the continued practice of prohibited activities such as importing, marketing and selling infringing LCD devices, including LCD panels and modules, and LCD televisions and professional displays containing the same.  See our June 26, 2009 post for more details. In the December 14 notice, the Commission determined to “institute formal enforcement proceedings to determine whether Sharp is in violation of the Commission’s limited exclusion order and cease and desist orders issued in the investigation, and what, if any, enforcement measures are appropriate.”
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ITC Decides To Review Remand Initial Determination In Certain Refrigerators (337-TA-632)

By Eric Schweibenz
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Dec
16
On December 14, 2009, the International Trade Commission issued a notice determining to review in its entirety the final initial determination on remand issued by ALJ Theodore R. Essex on October 9, 2009 in Certain Refrigerators and Components Thereof (Inv. No. 337-TA-632). By way of background, the Complainants in this investigation are Whirlpool Corp., Whirlpool Manufacturing Corp., Whirlpool Patents Co., and Maytag Corp. (collectively, “Whirlpool”) and the Respondents are LG Electronics Corp., Inc., LG Electronics, USA, Inc., and LG Electronics Monterrey, Mexico S.A. de C.V. (collectively, “LG”).  The investigation was instituted on February 21, 2008.  On February 26, 2009, ALJ Essex issued the initial determination, finding no violation of Section 337 with respect to United States Patent No. 6,082,130 (the ‘130 patent).  On April 27, 2009, the Commission decided to review the ID in its entirety and requested briefing by the parties on the issue of claim construction.  In its July 8, 2009 opinion, the Commission (i) modified the ID’s claim construction for the terms “freezer compartment,” “disposed within the freezer department,” and “ice storage bin having a bottom opening,” (ii) affirmed the ID’s construction of the term “ice maker,” and (iii) determined to remand the investigation to the ALJ to make findings regarding infringement, validity, and domestic industry consistent with the Commission’s claim constructions.  See our July 8 post for more details.  On July 22, 2009, LG filed a petition for reconsideration of the Commission’s decision to modify the ALJ’s claim constructions of the phrases “freezer compartment” and “disposed within the freezer compartment.”  On August 28, 2009, the Commission denied LG’s petition.  See our September 1 post for more details.  On October 9, 2009, ALJ Essex issued his initial determination on remand (“RID”), finding no violation of Section 337.  Specifically, in the RID, ALJ Essex determined (1) that the accused refrigerators and components thereof do not infringe the asserted claims of the ‘130 patent literally or under the doctrine of equivalents; (2) that claims 1, 2, 4, 6, and 9 of the ‘130 patent are invalid under 35 U.S.C. § 103 for obviousness, but that claim 8 of the ‘130 patent is not invalid under 35 U.S.C. § 103; and (3) a domestic industry exists. On October 26, 2009, Whirlpool filed a petition for review of the RID, and LG filed a contingent petition for review of the RID.  On November 3, 2009, LG filed a response to Whirlpool’s petition for review.  On November 4, 2009, Whirlpool filed a response to LG’s contingent petition for review.  On November 6, 2009, the Commission Investigative Staff filed a combined response to both petitions. After examining the record of the investigation, including the RID, the Commission decided to review the RID in its entirety.  In the December 14 notice, the parties are requested to brief their positions in response to the following questions: “Does the prior art of record show an ice discharge chute, as recited in claim 2 of the ‘130 patent, that is separate from and below the bottom opening of the ice storage bin?  Can this prior art be combined with the Hitachi reference, or any other prior art references that are currently in the record, to render claim 2 obvious?” The parties’ briefs to the Commission are due by December 30, 2009, with reply submissions due by January 7, 2010.
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ITC Decides To Review Initial Determination And Requests Comment On The Interpretation Of Section 337(a)(3) As It Pertains To Licensing In Certain Coaxial Cable Connectors (337-TA-650)

By Eric Schweibenz
|
Dec
16
On December 14, 2009, the International Trade Commission issued a notice determining to review a portion of the October 13, 2009 final initial determination (“ID”) issued by ALJ E. James Gildea in Certain Coaxial Cable Connectors and Components Thereof and Products Containing Same (Inv. No. 337-TA-650).  In the notice, the Commission also determined to extend the target date in this investigation to March 17, 2010. 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, “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 the ID, finding that no violation of Section 337 had occurred in connection with Respondents’ importation into the U.S., the sale for importation, or the sale within the U.S. after importation of certain coaxial cable connectors by reason of infringement of U.S. Patent No. 5,470,257 (the ‘257 patent).  The ID further found that the Defaulting Respondents were in violation of Section 337 for reasons of infringement of the ‘257 patent, U.S. Patent Nos. 6,558,194; D440,539 (the ‘539 patent); and D519,076.  See our November 10 post for more details. On October 30, 2009, PPC and the Commission Investigative Staff (the “Staff”) filed petitions for review of the ID, and Respondents filed a contingent petition for review of the ID.  On November 9, 2009, PPC, the Staff, and the Respondents each filed responses to the petitions for review. After examining the record of the investigation, including the ID, the petitions for review, and the responses thereto, the Commission decided to review the ID in part.  Specifically, in the December 14 notice, the Commission determined to review “(1) the findings and conclusions relating to whether a violation of section 337 has occurred with respect to the ‘257 patent, including the issues of claim construction, infringement, validity, and domestic industry and (2) the ID’s finding that PPC has met the domestic industry requirement for the ‘539 patent.”  In addition, the notice requests briefing on nine questions of particular interest to the Commission. Significantly, the Commission also asked in the notice that the parties and members of the public comment on “the interpretation of section 337(a)(3) as it pertains to licensing.”  More particularly, in the notice the Commission asks (1) “In determining whether ‘investment’ in ‘licensing’ is ‘substantial,’ is all spending in connection with licensing efforts by an intellectual property owner [ ] properly considered ‘investment’ and, if so, do some kinds of spending in connection with licensing efforts merit full weight in the Commission’s analysis of whether total investment is ‘substantial’ while others merit less weight?”; (2) “Does Congress’s use of the term ‘exploitation’ in section 337(a)(3)(C) require the Commission to give greater weight to licensing efforts directed to bringing the protected article to market as opposed to, for example, efforts seeking to require an existing producer to take a license for a product it already makes?”; (3) “Is it significant that Congress grouped ‘licensing’ with ‘engineering’ and ‘research and development’ in describing exploitation in section 337(a)(3)(C)?”; and (4) “To what extent do legal fees paid by an intellectual property rights holder in litigation with targeted licensees and/or infringers represent investments in the exploitation of an intellectual property right within the meaning of section 337(a)(3)(C)?” Written submissions in response to the Commission’s December 14 notice are due by January 13, 2010, with reply submissions due by January 27, 2010.
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