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ITC Decides Not To Review Initial Determination Terminating The Investigation In Certain Collaborative System Products (337-TA-682)

By Eric Schweibenz
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Dec
17
Further to our December 4 post, on December 16, 2009, the International Trade Commission issued a notice determining not to review ALJ E. James Gildea’s December 2, 2009 Order No. 7 terminating the investigation based on a settlement agreement in Certain Collaborative System Products and Components Thereof (Inv. No. 337-TA-682).
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ITC Decides To Review Supplemental Initial Determination In Certain Encapsulated Integrated Circuit Devices (337-TA-501)

By Eric Schweibenz
|
Dec
17
On December 16, 2009, the International Trade Commission issued a notice determining to review ALJ Charles E. Bullock’s October 30, 2009 Supplemental Initial Determination (“Supplemental ID”) in Certain Encapsulated Integrated Circuit Devices and Products Containing Same (Inv. No. 337-TA-501). By way of background, the Complainant in this investigation is Amkor Technology, Inc. (“Amkor”) and the Respondents are Carsem (M) Sdn Bhd, Carsem Semiconductor Sdn Bhd, and Carsem, Inc. (collectively “Carsem”).  On November 9, 2005, ALJ Bullock issued a Remand Initial Determination, finding that (1) there was a violation of Section 337 in connection with U.S. Patent No. 6,433,277 (the ‘277 patent); and (2) no violation of Section 337 had occurred in connection with U.S. Patent No. 6,630,728 and U.S. Patent No. 6,455,356.  In particular, ALJ Bullock found that certain of Carsem’s accused products infringe valid claims 2, 3, 21, and 22 of the ‘277 patent.  On July 1, 2008, the U.S. District Court for the District of Columbia granted the Commission’s petition to enforce subpoenas duces tecum and ad testificandum to non-party ASAT.  In response, Carsem renewed its motion to remand the investigation and reopen the record to include any new evidence obtained as a result of the enforcement of the subpoenas.  The Commission issued a Remand Order on July 1, 2009, ordering that (1) the investigation be remanded to reopen the record to admit any new evidence obtained as a result of the enforcement of the subpoena duces tecum to ASAT, and (2) the ALJ revise or supplement the Initial Determination as appropriate, in light of the supplemental evidence, making all necessary findings concerning Carsem’s invalidity defenses for which the subpoena was obtained.  At a September 10-11, 2009 hearing, Carsem’s invalidity arguments were limited to 35 U.S.C. §§ 102(g) and 103(a).  On October 30, 2009, ALJ Bullock issued the Supplemental ID reaffirming his finding of a violation of Section 337.  See our November 27, 2009 post for more details. On November 12, 2009, Carsem filed a petition for review of the Supplemental ID.  On November 19, 2009, Amkor and the Commission Investigative Staff filed responses opposing Carsem’s petition for review. After examining the record of the investigation, including the Supplemental ID, the petition for review, and the responses thereto, the Commission decided to review the Supplemental ID in its entirety.  In the December 16 notice, the Commission noted its particular interest in receiving responses to the following two questions: (1) “What is the earliest possible priority date that can be established for the inventions embodied in Amkor’s patents-in-suit based on the ALJ’s finding that the evidence presented by Amkor is sufficient to establish a priority date no earlier than mid-1997 and no later than December 10, 1997, in light of Oka v. Youssefyeh, 849 F.2d 581 (Fed. Cir. 1988) and other applicable Federal Circuit and Commission precedent?”, and (2) “Is the ALJ’s use of an assumed priority date rather than determining an actual priority date to make his validity finding under 35 U.S.C. § 102(g) supported by the Federal Circuit and Commission precedent?” Written submissions in response to the Commission’s December 16 notice are due by December 30, 2009, with reply submissions due by January 8, 2010.
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ITC Decides Not To Review Initial Determination In Certain Cast Steel Railway Wheels (337-TA-655)

By Eric Schweibenz
|
Dec
18
On December 17, 2009, the International Trade Commission issued a notice determining not to review ALJ Carl C. Charneski’s October 16, 2009 Initial Determination (“ID”) in Certain Cast Steel Railway Wheels, Certain Processes For Manufacturing Or Relating To Same And Certain Products Containing Same (Inv. No. 337-TA-655). By way of background, the Complainant in this investigation is Amsted Industries Inc. (“Amsted”).  The Respondents are Tianrui Group Co. Ltd, Tianrui Group Foundry Co. Ltd (collectively, “Tianrui”), Standard Car Truck Company, Inc. (“SCT”), and Barber Tianrui Railway Supply (“Barber”).  On October 16, 2009, ALJ Charneski issued the ID finding that a violation of Section 337 had occurred in the importation into the U.S., the sale for importation, and the sale within the U.S. after importation of certain cast steel railway wheels or products containing the same by reason of trade secret misappropriation.  See our October 19 and December 4 posts for more details. On October 30, 2009, SCT and Barber filed a joint petition for review of the ID.  On November 2, 2009, Tianrui filed a petition for review and Amsted filed a contingent petition for review.  Amsted filed responses to the joint petition of SCT/Barber and Tianrui’s petition on November 9 and 10, respectively.  SCT/Barber and Tianrui filed their responses on November 10.  The Commission Investigative Staff filed responses to the three petitions on November 10. According to the December 17 notice, the “Commission has determined not to review the subject ID.” Written submissions on the issues of remedy, the public interest, and bonding are due by December 29, 2009, with reply submissions due by January 6, 2010.
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ITC Further Extends Target Date In Certain Variable Speed Wind Turbines (337-TA-641)

By Eric Schweibenz
|
Dec
21
Further to our November 23 post, on December 18, 2009, the International Trade Commission issued a notice deciding to further 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, 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.  See our October 29 post for more details.  On October 8, 2009, the Commission issued a notice determining to review the ID.  See our October 8 post for more details. In the December 18 notice, the Commission “determined to extend the target date for completion of the investigation to January 8, 2010.”
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ITC Decides To Review Initial Determination Granting Motion For Summary Determination On Economic Prong Of The Domestic Industry Requirement In Certain Adjustable Keyboard Support Systems (337-TA-670)

By Eric Schweibenz
|
Dec
23
On December 22, 2009, the International Trade Commission issued a notice determining to review Chief ALJ Paul J. Luckern’s November 4, 2009 Initial Determination (Order No. 27) (“ID”) granting Complainant Humanscale Corporation’s (“Humanscale”) motion for summary determination on the economic prong of the domestic industry requirement in Certain Adjustable Keyboard Support Systems and Components Thereof (Inv. No. 337-TA-670). By way of background, the Commission instituted this investigation on March 9, 2009.  See our March 11 post for more details.  The Respondents in this investigation are CompX International, Inc. and Waterloo Furniture Components, Ltd. d/b/a CompX Waterloo (collectively, “CompX”).  On November 4, 2009, ALJ Luckern issued the ID finding that the economic prong of the domestic industry requirement of 19 U.S.C. § 1337(a)(3) was met.  See our November 19 post for more details. On November 16, 2009, CompX filed a petition for review of the ID.  On November 23, 2009, Humanscale and the Commission Investigative Staff filed oppositions to the petition for review. After examining the record of the investigation, including the ID, the Commission decided to review the ID.  Specifically, the December 22 notice requests briefing on seven questions (with sub-questions) of particular interest to the Commission:
  • Are the patented articles themselves articles of commerce and is there a separate market for the patented articles?  To what extent should these factors affect the domestic industry analysis?  Should the Commission take into account the relative sizes of the markets for the patented articles and the domestically-produced articles?
  • What other factors related to the “realities of the marketplace” should the Commission consider in its domestic industry analysis, both in general and with respect to this particular investigation?
  • Should the Commission consider whether the patented article contributes significantly to the final, finished product, and if so, what should guide the analysis, both in general and with respect to this particular investigation?
  • Can the Commission find a domestic industry related to a domestically-produced article that is not physically integrated with the patented article?
  • Are the domestically-produced products necessary for the imported products to practice the ‘097 patent?
  • Please address the Federal Circuit’s decision in Schaper Manuf. Co. v. USITC, 717 F.2d 1368 (Fed. Cir. 1983).
  • Please address further any policy considerations you believe are raised by the domestic industry analysis on the facts of this investigation.
Written submissions in response to the Commission’s December 22 notice are due by January 15, 2010, with reply submissions due by January 22, 2010.
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ITC Decides Not To Review Initial Determination In Certain Products Advertised As Containing Creatine Ethyl Ester (337-TA-679)

By Eric Schweibenz
|
Dec
28
On December 23, 2009, the International Trade Commission issued a notice determining not to review ALJ Charles E. Bullock’s December 4, 2009 Initial Determination (“ID”) finding Respondent EST Nutrition LLC d/b/a Engineered Sport Technology, Inc. (“EST”) in default in Certain Products Advertised As Containing Creatine Ethyl Ester (Inv. No. 337-TA-679). By way of background, the Complainant in this investigation is UneMed Corp. and the June 23, 2009 Notice of Investigation named the following as Respondents:  Bodyonics, Ltd. (“Bodyonics”), Engineered Sports Technology, Inc., Proviant Technologies, Inc. (“Proviant”), NRG-X Labs. (“NRG-X”), and San Corporation.  See our June 18 post for more details.  On September 29, 2009, the Commission issued a notice of its decision not to review an initial determination terminating the investigation with respect to San Corporation on the basis of a consent order.  On October 19, 2009, the Commission issued a notice of its decision not to review an initial determination finding Bodyonics, NRG-X, and Proviant in default.  On December 4, 2009, ALJ Bullock issued the ID (Order No. 12), finding EST in default and terminating the investigation.  No petitions for review were filed. According to the December 23 notice, “EST is the last remaining respondent in this investigation” and the “investigation has been terminated with respect to all other respondents based on consent order and default.” Written submissions on the issues of remedy, the public interest, and bonding are due by January 6, 2010, with reply submissions due by January 18, 2010.
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ITC Issues Final Determination Of No Violation In Certain Semiconductor Chips With Minimized Chip Package Size (337-TA-630)

By Eric Schweibenz
|
Dec
30
On December 29, 2009, the International Trade Commission issued a notice determining that there has been no violation of Section 337 in Certain Semiconductor Chips With Minimized Chip Package Size and Products Containing Same (Inv. No. 337-TA-630). By way of background, this investigation was instituted on January 14, 2008, based on the complaint of Tessera, Inc. 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.  According to the December 29 notice, the following Respondents remained in the investigation:  Acer, Inc., Acer America Corporation, Nanya Technology Corporation, Nanya Technology Corporation U.S.A., Powerchip Semiconductor Corporation, Elpida Memory, Inc., Elpida Memory (USA), Inc., ProMOS Technologies, Inc., Kingston Technology Co., Inc., Ramaxel Technology Ltd., Centon Electronics, Inc., and SMART Modular Technologies, Inc.  On August 28, 2009, ALJ Theodore R. Essex issued his initial determination (“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.  Further, ALJ Essex determined that a domestic industry exists that practices the patents-in-suit.  See our September 1 and October 1 posts for more details.  On October 30, 2009, the Commission issued a notice determining to review in part the ID.  See our November 2 post for more details. According to the December 29 notice, the Commission determined to: “(1) modify the ALJ’s construction of the claim terms ‘top layer’ and ‘thereon’ recited in claim 1 of the ‘106 patent; (2) reverse the ALJ’s finding that the accused μBGA products do not meet all of the limitations of the asserted claims of the ‘106 patent but affirm his finding that there is no infringement due to patent exhaustion; (3) affirm the ALJ’s finding that the accused wBGA products do not infringe the asserted claims of the ‘106 patent; (4) affirm the ALJ’s validity and domestic industry analyses pertaining to the asserted claims of the ‘106 patent; (5) affirm the ALJ’s finding that the Direct Loading testing methodology employed by Tessera’s expert fails to prove infringement; and (6) affirm the ALJ’s finding that the 1989 Motorola OMPAC 68-pin chip package fails to anticipate claims 17 and 18 of the ‘977 patent under the on-sale bar provision of 35 U.S.C. § 102(b), but modify a portion of the ID.” Finally, the Commission determined that there has been no violation of Section 337 and terminated the investigation.
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ITC Grants Joint Motion To Terminate Investigation Based On Settlement Agreement In Certain Automotive Multimedia Display And Navigation Systems (337-TA-657)

By Eric Schweibenz
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Jan
06
On January 4, 2010, the International Trade Commission issued a notice determining to grant a joint motion to terminate the investigation 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 ALJ Theodore R. Essex issued the initial determination (“ID”) on September 22, 2009 finding no violation of Section 337.  See our November 4 post for more details.  On November 23, 2009, the Commission decided to review the ID in part.  See our November 25 post for more details.  On December 22, 2009, Honeywell and Pioneer filed a joint motion to terminate the investigation based on a settlement agreement.  On December 24, 2009, the Commission Investigative Staff filed a response that recommended that the Commission grant the motion.
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ITC Issues Final Determination Of No Violation In Certain Variable Speed Wind Turbines (337-TA-641)

By Eric Schweibenz
|
Jan
09
On January 8, 2010, the International Trade Commission issued a notice determining that there has been no violation of Section 337 in Certain Variable Speed Wind Turbines and Components Thereof (Inv. No. 337-TA-641). By way of background, 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”).  On August 7, 2009, ALJ Carl C. Charneski issued the Initial Determination (“ID”) finding that a violation of Section 337 had 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.  See our October 29, 2009 post for more details.  On October 8, 2009, the Commission issued a notice determining to review the ID, except the issue of importation and the intent finding underlying the ALJ’s inequitable conduct determination.  See our October 8, 2009 post for more details. According to the January 8 notice, the Commission “determined to terminate the investigation with a final determination of no violation.”  The Commission further stated in the notice that a “Commission opinion will issue shortly.”
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ITC Extends Target Date In Certain Semiconductor Integration Circuits Using Tungsten Metallization (337-TA-648)

By Eric Schweibenz
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Jan
22
On January 21, 2010, the International Trade Commission issued a notice deciding to extend the target date for completion of the investigation 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. and the Respondents are Tower Semiconductor, Ltd., Jazz Semiconductor, Powership Semiconductor Corporation, Grace Semiconductor Manufacturing Corporation, Integrated Device Technology, Inc., Spansion, Inc., and Nanya Technology Corporation.  On September 21, 2009, ALJ Carl C. Charneski issued an initial determination (“ID”) finding no violation of Section 337.  On November 23, 2009, the Commission issued a notice determining to review-in-part the ID finding no violation of Section 337 and determining to remand a portion of the investigation to ALJ Charneski.  See our November 30, 2009 post for more details.  On January 15, 2010, ALJ Charneski issued a remand ID finding that claim 4 of U.S. Patent No. 5,227,335 was not rendered obvious by IBM Process A and other prior art. In the January 21 notice, the Commission “determined to extend the target date for completion of the investigation to March 22, 2010.”
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ITC Decides Not To Review Initial Determination Denying Motion For Forfeiture Of Bonds In Certain Semiconductor Chips With Minimized Chip Package Size (337-TA-605)

By Eric Schweibenz
|
Jan
23
On January 22, 2010, the International Trade Commission issued a notice determining not to review an initial determination (“ID”) issued by ALJ Theodore R. Essex denying Complainant Tessera, Inc.’s (“Tessera”) motion for forfeiture of Respondents’ bonds, limited discovery, and evidentiary hearing in Certain Semiconductor Chips With Minimized Chip Package Size and Products Containing Same (Inv. No. 337-TA-605). By way of background, this investigation was instituted in May 2007 based on Tessera’s complaint against Respondents Spansion, Inc., Spansion, LLC, Qualcomm, Inc., ATI Technologies, Motorola, Inc., STMicroelectronics N.V., and Freescale Semiconductor, Inc. (collectively “Respondents”) alleging violation 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 with minimized chip package size or products containing same by reason of infringement of certain claims of U.S. Patent Nos. 5,852,326 and 6,433,419.  On May 20, 2009, the Commission issued its final disposition of the investigation, finding a violation of Section 337 and issuing a limited exclusion order against the Respondents and cease and desist orders against several domestic Respondents.  See our May 22, 2009 and June 11, 2009 posts for more details.  On October 16, 2009, Tessera filed a motion for forfeiture of Respondents’ bonds, limited discovery, and an evidentiary hearing pursuant to Commission Rule 210.50(d).  On December 20, 2009, ALJ Essex issued the ID denying the motion as premature in light of the pending appeal of the Commission’s final determination to the Federal Circuit. In the January 22 notice, the Commission determined “not to review the subject ID” and further determined that “Tessera may re-file its motion for forfeiture of bonds, if appropriate, after the conclusion of the pending appeal.”
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ITC Upholds Initial Determination Of No Violation In Certain Semiconductor Integrated Circuits (337-TA-665)

By Eric Schweibenz
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Feb
01
On January 29, 2010, the International Trade Commission issued a notice determining to review in part ALJ Robert K. Rogers, Jr.’s October 14, 2009 initial determination (“ID”) finding no violation of Section 337 in Certain Semiconductor Integrated Circuits and Products Containing Same (Inv. No. 337-TA-665).  The Commission determined to take no position on one issue, and to terminate the investigation with a finding of no violation. By way of background, and as explained in our October 19, 2009 post, the Complainant in this investigation is Qimonda AG (“Qimonda”) and the Respondents are LSI Corporation, Seagate Technology, Seagate Technology (US) Holdings, Inc., Seagate Technology LLC, Seagate Memory Products (US) Corporation, Seagate Technologies International (Singapore), and Seagate (US) LLC (collectively “Respondents”).  In the ID, ALJ Rogers held that there was no violation of Section 337 by Respondents.  Specifically, ALJ Rogers determined that none of the accused products literally infringed United States Patent Nos. 5,213,670 (“the ‘670 patent”), 5,646,434 (“the ‘434 patent”), and 5,851,899 (“the ‘899 patent”).  ALJ Rogers also determined that while certain claims of United States Patent No. 6,495,918 (“the ‘918 patent”) were literally infringed by certain products of Respondent LSI, no industry exists in the U.S. that exploits the ‘918 patent (or any of the asserted patents), as required by 19 U.S.C. § 1337(a)(2).  In addition, ALJ Rogers determined that certain claims of the ‘918 patent are invalid under 35 U.S.C. § 102 and that certain claims of the ‘434 patent are invalid under 35 U.S.C. § 102 or § 103.  Further, ALJ Rogers determined that the asserted claims of the ‘670 and ‘899 patents are valid and the patents are enforceable. On October 27, 2009, Qimonda filed a petition for review of the ID with respect to the ‘434, ‘899, and ‘918 patents (but not the ‘670 patent).  On November 5, the Respondents and the ITC Staff filed responses to the petition. The Commission determined to review the final ID in part “and to take no position on whether U.S. Patent No. 6,242,051 to Shinogi anticipates, under 35 U.S.C. § 102, any of the asserted claims of the ‘918 patent.”  The Commission determined not to review the remainder of the ID and thus terminated the investigation with a finding of no violation.
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ITC Issues Final Determination Of No Violation In Certain Refrigerators (337-TA-632)

By Eric Schweibenz
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Feb
15
On February 12, 2010, the International Trade Commission issued a notice determining that there has been no violation of Section 337 in Certain Refrigerators and Components Thereof (Inv. No. 337-TA-632). By way of background, the Complainants in this investigation were Whirlpool Corp., Whirlpool Manufacturing Corp., Whirlpool Patents Co., and Maytag Corp. (collectively, “Whirlpool”) and the Respondents were 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 26, 2008.  On February 26, 2009, ALJ Theodore R. 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, 2009  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, 2009 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 December 14, 2009, the Commission issued a notice determining to review the RID.  See our December 16, 2009 post for more details. In the February 12 notice, the Commission “determined to affirm the RID’s determination of no violation of the ‘130 patent” and terminated the investigation.  Specifically, the Commission determined to (1) “modify the ALJ’s implied construction of the claim limitations ‘the auger moves ice pieces from the ice storage bin through the bottom opening for dispensing from the ice storage bin’ and ‘ice crushing region,’” (2) “reverse a portion of the ALJ’s determination of non-infringement and find that the accused side-by-side models infringe claims 1, 2, 4, 6, and 9 of the ‘130 patent,” (3) “affirm[ ] the ALJ’s finding that the accused side-by-side model refrigerators do not infringe claim 8 of the ‘130 patent,” (4) “affirm[ ] the ALJ’s finding that the accused French Door model refrigerators do not infringe any of the asserted claims of the ‘130 patent,” (5) “affirm[ ] the ALJ’s finding that claims 1, 2, 4, 6, and 9 of the ‘130 patent are invalid for obviousness with several modifications to the analysis concerning claims 1 and 2,” (6) affirm[ ] the ALJ’s finding that claim 8 is not invalid for obviousness,” and (7) affirm[ ] the ALJ’s finding that there is a domestic industry.”
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ITC Extends Target Date In Certain Encapsulated Integrated Circuit Devices (337-TA-501)

By Eric Schweibenz
|
Feb
15
On February 12, 2010, the International Trade Commission issued a notice deciding to extend the target date for completion of the investigation in Certain Encapsulated Integrated Circuit Devices and Products Containing Same (Inv. No. 337-TA-501). By way of background, the Complainant in this investigation is Amkor Technology, Inc. (“Amkor”) and the Respondents are Carsem (M) Sdn Bhd, Carsem Semiconductor Sdn Bhd, and Carsem, Inc. (collectively “Carsem”).  On November 9, 2005, ALJ Charles E. Bullock issued a Remand Initial Determination, finding that (1) there was a violation of Section 337 in connection with U.S. Patent No. 6,433,277; and (2) no violation of Section 337 had occurred in connection with U.S. Patent No. 6,630,728 and U.S. Patent No. 6,455,356.  On October 30, 2009, ALJ Bullock issued the Supplemental Initial Determination (“Supplemental ID”) reaffirming his finding of a violation of Section 337.  See our November 27, 2009 post for more details.  On December 16, 2009, the Commission issued a notice determining to review the Supplemental ID.  See our December 17, 2009 post for more details. In the February 12 notice, the Commission indicated that it “has not been able to complete its review due to inclement weather that forced the closure of the Federal government for four days” and thus determined to “extend[ ] the target date in this investigation until February 18, 2010.”
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ITC Reverses Supplemental Initial Determination and Remands Investigation In Certain Encapsulated Integrated Circuit Devices (337-TA-501)

By Eric Schweibenz
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Feb
22
On February 18, 2010, the International Trade Commission issued a notice determining to reverse ALJ Charles E. Bullock’s October 30, 2009 Supplemental Initial Determination (“Supplemental ID”) and remand the investigation in Certain Encapsulated Integrated Circuit Devices and Products Containing Same (Inv. No. 337-TA-501). By way of background, the Complainant in this investigation is Amkor Technology, Inc. (“Amkor”) and the Respondents are Carsem (M) Sdn Bhd, Carsem Semiconductor Sdn Bhd, and Carsem, Inc. (collectively “Carsem”).  On November 9, 2005, ALJ Bullock issued a Remand Initial Determination, finding that (1) there was a violation of Section 337 in connection with U.S. Patent No. 6,433,277 (the ‘277 patent); and (2) no violation of Section 337 had occurred in connection with U.S. Patent No. 6,630,728 and U.S. Patent No. 6,455,356.  On July 1, 2008, the U.S. District Court for the District of Columbia granted the Commission’s petition to enforce subpoenas duces tecum and ad testificandum to non-party ASAT.  In response, Carsem renewed its motion to remand the investigation and reopen the record to include any new evidence obtained as a result of the enforcement of the subpoenas.  The Commission issued a Remand Order on July 1, 2009, ordering that (1) the investigation be remanded to reopen the record to admit any new evidence obtained as a result of the enforcement of the subpoena duces tecum to ASAT, and (2) the ALJ revise or supplement the Initial Determination as appropriate, in light of the supplemental evidence, making all necessary findings concerning Carsem’s invalidity defenses for which the subpoena was obtained.  At a September 10-11, 2009 hearing, Carsem’s invalidity arguments were limited to 35 U.S.C. §§ 102(g) and 103(a).  On October 30, 2009, ALJ Bullock issued the Supplemental ID reaffirming his finding of a violation of Section 337.  See our November 27, 2009 post for more details.  On December 16, 2009, the Commission issued a notice determining to review the Supplemental ID.  See our December 17, 2009 post for more details. The Commission’s order accompanying the February 18 notice stated that the “ALJ’s finding that the ASAT LPCC invention is not prior art to the Amkor asserted patents-in-suit is legally erroneous, and is reversed.”  The order further held that the ASAT LPCC invention “is prior art to the Amkor asserted patents.”  The order then remanded the investigation to the ALJ to make “necessary findings on anticipation and obviousness in view of the Commission’s determination that the ASAT LPCC invention is prior art to Amkor’s asserted patents.”  The Commission further determined that the ALJ must issue findings in accordance with the order by March 22, 2010.  The Commission also extended the target date for completion of this investigation to July 20, 2010.
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ITC Seeks Feedback on Effectiveness of Exclusion Orders

By Eric Schweibenz
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Mar
03
On February 19, 2010, the ITC issued a Notice that it intends to survey complainants who obtained exclusion orders that are currently in effect pursuant to proceedings under Section 337.  The surveys will seek feedback on the effectiveness of exclusion orders in stopping certain imports. The proposed surveys ask complainants that have obtained outstanding exclusion orders to:  (i) evaluate whether the exclusion order has prevented the importation of items covered by the order; (ii) if not, estimate the absolute value and effect in the U.S. market of such imports; and (iii) indicate their experience in policing the exclusion order, particularly with respect to interactions with the U.S. Customs and Border Protection. According to the notice, responses to the surveys will be voluntary and should be received no later than 60 days after publication of the notice.  The ITC has proposed two surveys – one survey relating to general exclusion orders and one survey relating to limited exclusion orders.
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ITC Extends Target Date In Certain Coaxial Cable Connectors (337-TA-650)

By Eric Schweibenz
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Mar
23
On March 17, 2010, the International Trade Commission issued a notice deciding to extend the target date for completion of the investigation 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. 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 final initial determination (“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, and D519,076.  See our November 10, 2009 post for more details.  On December 14, 2009, the International Trade Commission issued a notice determining to review a portion of the ID.  The notice also asked the parties and members of the public comment on “the interpretation of section 337(a)(3) as it pertains to licensing.”  See our December 16, 2009 post for more details. In the March 17 notice, the Commission “determined to extend the target date by nine days to March 26, 2010.”
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ITC Reverses Remand Initial Determination In Certain Semiconductor Integration Circuits Using Tungsten Metallization (337-TA-648)

By Eric Schweibenz
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Mar
23
On March 22, 2010, the International Trade Commission issued a notice determining to reverse a remand initial determination (“Remand ID”) issued by ALJ Carl C. Charneski on January 15, 2010, and to affirm-in-part, reverse-in-part, and modify-in-part a final initial determination (“ID”) issued by ALJ Charneski on September 21, 2009 in Certain Semiconductor Integration Circuits Using Tungsten Metallization and Products Containing Same (Inv. No. 337-TA-648).  In the notice, the Commission determined that no violation of Section 337 had occurred and terminated the investigation. By way of background, the Complainants in this investigation are LSI Corporation and Agere Systems Inc.  The remaining Respondents in this investigation are Tower Semiconductor, Ltd. (“Tower”); Jazz Semiconductor (“Jazz”); Powerchip Semiconductor Corporation; Grace Semiconductor Manufacturing Corporation; Integrated Device Technology, Inc.; and Nanya Technology Corporation (collectively, the “Respondents”).  The investigation was instituted on May 21, 2008. On September 21, 2009, ALJ Charneski issued the ID finding no violation of Section 337 by the Respondents.  As indicated in our November 30, 2009 post, on November 23, 2009, the Commission determined to review-in-part the ID and issued an order remanding the investigation to the ALJ for further proceedings.  Specifically, the Commission determined to review: (1) the invalidity of claims 1, 3, and 4 of the ‘335 patent with respect to IBM Process A, IBM Process B, and a specific piece of prior art (“the AMD prior art”), and (2) Jazz’s stipulation regarding whether its process met one of the steps of claim 1.  As indicated in our January 29, 2010 post, on January 15, 2010, ALJ Charneski issued a Remand ID.  In the Remand ID, ALJ Charneski determined that claim 4 was not rendered obvious by the relevant prior art. In the notice, the Commission reversed the Remand ID, determining that claim 4 was invalid due to obviousness in view of IBM Process A in combination with other prior art. Additionally, the Commission affirmed-in-part, reversed-in-part, and modified-in-part the ID, determining that there was no violation of Section 337 by the Respondents.  Specifically, the Commission affirmed ALJ Charneski’s determination that claims 1 and 3 were invalid due to anticipation in view of IBM Process A.  The Commission also modified ALJ Charneski’s ruling that Jazz stipulated to the complete, third recited step of claim 1, and instead determined that Jazz’s stipulation only included a portion of the step.  The Commission took no position on ALJ Charneski’s rulings that claims 1 and 3 were not anticipated in view of IBM Process B; that claim 1 was not anticipated in view of the AMD prior art; and that claims 1, 3, and/or 4 were not obvious in view of IBM Process B or the AMD prior art.
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ITC To Review Initial Determination In Certain Semiconductor Chips (337-TA-661)

By Eric Schweibenz
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Mar
26
On March 25, 2010, the ITC issued a notice that it determined to review in part ALJ Theodore R. Essex’s Initial Determination (“ID”) finding that Respondents violated Section 337 in Certain Semiconductor Chips Having Synchronous Dynamic Random Access Memory Controllers and Products Containing Same (Inv. No. 337-TA-661). By way of background, the Complainant in this investigation is Rambus Inc. (“Rambus”) and the respondents are NVIDIA Corp. (“NVIDIA”); Asustek Computer Inc.; ASUS Computer International, Inc.; BFG Technologies, Inc.; Biostar Microtech (U.S.A.) Corp.; Biostar Microtech International Corp.; Diablotek Inc.; EVGA Corp.; G.B.T. Inc.; Giga-byte Technology Co., Ltd.; Hewlett-Packard Co.; MSI Computer Corp.; Micro-star International Co., Ltd.; Palit Multimedia Inc.; Palit Microsystems Ltd.; Pine Technology Holdings, Ltd.; and Sparkle Computer Co., Ltd (collectively, “Respondents”).  In his ID issued on January 22, 2010, ALJ Essex found a violation of Section 337 by the importation, sale for importation, or sale within the U.S. after importation of certain semiconductor chips having synchronous dynamic random access memory controllers and products containing that infringed one or more claims of U.S. Patent Nos. 6,470,405; 6,591,353 and 7,287,109.  The ALJ further found no infringement of the asserted claims of U.S. Patent Nos. 7,177,998 and 7,210,016.  See our January 25, 2010 post for more details. According to the notice, the ITC determined to review the ID in part, specifically (1) the anticipation and obviousness findings with respect to the Ware patents, (2) the obviousness-type double patenting analysis regarding the asserted Barth I claims, and (3) the analysis of the alleged obviousness of the asserted Barth I claims. Regarding the Ware patents, the ITC requested briefing on (1) the differences between the scope and content of the Coteus patent and the asserted Ware claims, (2) the appropriate skill level of one of ordinary skill in the art, and (3) whether the asserted Ware claims would have been obvious, including which claim element(s), if any, are not disclosed in the Coteus reference but would have been obvious to one of ordinary skill in the art. Regarding obviousness-type double patenting of the Barth I claims, the ITC requested briefing on whether the differences in scope of the asserted Barth I claims and the claims of the Farmwald ‘037 patent render the asserted Barth I claims patentably distinct. Regarding obviousness of the asserted Barth I claims, the ITC requested briefing on (1) the differences between the scope and content of the asserted prior art and the asserted Barth I claims, (2) the appropriate skill level of one or ordinary skill in the art, and (3) whether the asserted Barth I claims would have been obvious. According to the notice, the ITC also rejected Rambus’ petition to vacate Order No. 15 (relating to NVIDIA’s motion to compel production of materials subject to privilege piercing orders) and denied Respondents’ motion to extend the target date.
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ITC Extends Target Date In Certain Coaxial Cable Connectors (337-TA-650)

By Eric Schweibenz
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Mar
29
Further to our March 23 post, on March 26, 2010, the International Trade Commission issued a notice deciding to extend the target date for completion of the investigation in Certain Coaxial Cable Connectors and Components Thereof and Products Containing Same (Inv. No. 337-TA-650). In the March 26 notice, the Commission “determined to extend the target date by five days to March 31, 2010.”
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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.