ITC Blog: ITC 337 Update

On January 13, 2012 the ITC voted to institute an investigation of certain electric fireplaces, components thereof, and manuals for same, processes for manufacturing or relating to same, and products containing same.  The products at issue in this investigation are electric fireplaces and fireplace inserts designed to approximate the look of a real, wood-burning fireplace. The investigation is based on a complaint filed by Twin-Star International, Inc., of Delray Beach, FL, and TS Investment Holding Corp. of Miami, FL, on December 13, 2011.  The complaint alleges violations of section 337 of the Tariff Act of 1930 in the importation into the United States and sale of certain electric fireplaces, components thereof, and manuals for same, processes for manufacturing or relating to same, and products containing same that misappropriate trade secrets and infringe copyrights asserted by the complainants. The complaints also allege violations of section 337 based on breach of contract and tortious interference with contract.  The complainants request that the ITC issue an exclusion order and a cease and desist order and an order instructing respondents to immediately and verifiably turn over to complainants all documents and things in their possession, custody or control that contain or embody complainants' trade secrets or any information derived from complainants' trade secrets.  The USITC has identified the following as respondents in this investigation: Shenzhen Reliap Industrial Co. of China; Yue Qiu Sheng (aka Jason Yue) of China; and Whalen Furniture Manufacturing Inc. of San Diego, CA.

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On January 10, 2012, a complaint was filed on behalf of Eastman Kodak Company against proposed respondents that include Apple, HTC and Exedea.  The complaint alleges the unfair and unlawful importation of electronic devices that capture and transmit images, including smartphones, handheld tablets and video phones, that allegedly infringe Kodak’s U.S. Patent Nos. 7,210,161, 7,742,084, 7,453,605, 7,936,391, and 6,292,218. Kodak seeks a permanent exclusion order and a cease and desists order.

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On January 9, 2012, the Commission voted to institute an investigation of certain silicon microphone packages and products containing same. The products at issue in this investigation are silicon microphone packages.  The investigation is based on a complaint filed by Knowles Electronics, LLC, of Itasca, IL, on December 7, 2011.  The complaint alleges violations of section 337 of the Tariff Act of 1930 in the importation into the United States and sale of certain silicon microphone packages and products containing same that infringe patents asserted by Knowles Electronics.  The complainant requests that the ITC issue an exclusion order and a cease and desist order.  The ITC has identified the following as respondents in this investigation: Analog Devices Inc. of Norwood, MA; Amkor Technology, Inc., of Chandler, AZ; and
Avnet Inc. of Phoenix, AZ.

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On December 6, Chief ALJ Bullock terminated Inv. No. 337-TA-738, Certain Components For Installation of Marine Autopilots With GPS or IMU, on the basis of a settlement agreement between complainant and the remaining respondents, Navico AS, Navico UK, Ltd., and Navico Inc. The Chief ALJ denied as moot the parties' request that the full terms of the settlement agreement not be disclosed to other parties in the investigation, based on the fact that no additional respondents remained in the investigation.

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On December 6, ALJ Rogers issued three orders in Inv. No. 337-TA-807, Certain Digital Photo Frames and Image Display Devices and Components Thereof.  In two separate rulings, ALJ Rogers granted Complainant Technology Properties, Ltd.'s motion for default against respondents Nextar Inc., Win Accord Ltd, and WinAccord U.S.A., Inc., but denied a motion for default against respondents Curtis International, Ltd. and Aiptek International, Inc., While ALJ Rogers found that Nextar, the Win Accord respondents, Curtis and Aiptek had all been properly served with the complaint and had failed to respond, Nextar and the Win Accord respondents further failed to respond to ALJ Rogers' November 18 order to show cause.  Curtis and Aiptek, however, both responded to the order to show cause and represented to the ALJ that they were in the process of negotiating a settlement agreement with the complainant.  Based on these representations, ALJ Rogers granted Curtis and Aiptek an additional two weeks to either respond to the complaint and notice of investigation or file a motion for termination based upon a settlement agreement or consent order. 

Separately, ALJ Rogers granted a joint motion to terminate respondent Circus World Displays Ltd. from the investigation based on a settlement agreement which grants Circus World a non-exclusive license to a group of patents and trademarks in exchange for a running royalty.  ALJ Rogers found the settlement to be in the public interest, and terminated Circus World from the investigation.

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On December 5, 2011 Walker Digital LLC filed a complaint requesting that the International Trade Commission open an investigation into the importation, sale for importation, and sale after importation of Certain Blu-Ray Disc Players, Components Thereof, and Products Containing Same.  The sole patent at issue in the proposed investigation is U.S. Patent No. 6,263,505.  The proposed respondents are D&M Holdings, Inc.; D&M Holdings US, Inc.; Denon Electronics (USA) LLC; Funai Electric Co., Ltd.; Funai Corporation, Inc.; Haier Group Corporation; Haier America Trading, LLC; Harman International Industries, Inc.; Inkel Corporation; LG Electronics, Inc.; LG Electronics U.S.A., Inc.; Marantz America LLC; Onkyo Sound & Vision Corporation; Onkyo USA Corporation; Orion America, Inc.; Orion Electric Co., Ltd.; Panasonic Corporation; Panasonic Corporation of North America; P&F USA, Inc.; Philips Electronics North America Corp.; Pioneer Corporation; Pioneer Electronics(USA) Inc.; Samsung Electronics Co., Ltd.; Samsung Electronics America, Inc.; Sharp Corporation; Sharp Electronics Corporation; Sherwood America, Inc.; Sony Corporation; Sony Computer Entertainment, Inc.; Sony Corporation of America; Sony Electronics, Inc.; Sony Computer Entertainment America LLC; Toshiba Corporation; Toshiba America Information Systems, Inc.; VIZIO, Inc.; Yamaha Corporation; Yamaha Corporation of America; and Yamaha Electronics Corporation USA.

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The public version of Chief ALJ Bullock's November 23 order denying Vizio, Inc.'s motion to amend the complaint and notice of investigation in Inv. No. 337-TA-789, Certain Digital Televisions and Components Thereof, has been released.  Vizio sought to amend the motion to add two new respondents, Coby Electronics Co., Ltd. of China and Coby Manufacturing Co., Ltd. of Hong Kong.  Chief ALJ Bullock found that Vizio had failed to show good cause to amend the complaint and notice of investigation because Vizio was aware of the third parties' relationship with a current respondent, Coby Electronics Corp., no later than August 2011 and Vizio's delay of two months before requesting the amendment would be prejudicial to the Coby parties given the current procedural schedule. 

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On December 2, the International Trade Commission instituted Inv. No. 337-TA-818, Certain Devices With Secure Communication Capabilities, Components Thereof, and Products Containing the Same, based on a complaint filed on November 4, 2011 by VirnetX, Inc.  The proposed respondent is Apple Inc.

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On December 2, 2011, Digitude Innovations LLC filed a complaint with the International Trade Commission alleging a violation of Section 337 by importation, sale for importation, or sale after importation of U.S. Patent Nos. 5,926,636; 5,929,655; 6,208,879; and 6,456,841.  The proposed respondents are Research In Motion Ltd.; Research In Motion Corp.; HTC Corporation; HTC America, Inc.; LG Electronics, Inc.; LG Electronics MobileComm U.S.A., Inc.; LG Electronics U.S.A., Inc.; Motorola Mobility Holdings, Inc.; Samsung Electronics Co., Ltd.; Samsung Electronics America, Inc.; Samsung Telecommunications America LLC; Sony Corporation; Sony Corporation of America; Sony Ericsson Mobile Communications AB; Sony Ericsson Mobile Communications (USA) Inc.; Amazon.com, Inc.; Nokia Corporation; and Nokia, Inc.  

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On December 2, the International Trade Commission instituted Inv. No. 337-TA-817, 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, based on a complaint filed on November 1, 2011 by ChriMar Systems, Inc. The proposed respondents are Cisco Systems, Inc.;Cisco Consumer Products LLC; Cisco Systems International B.V.; Cisco-Linksys LLC; Hewlett-Packard Co.; 3Com Corporation; Avaya Inc.; and Extreme Networks, Inc.

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On November 30, 2011 Freescale Semiconductor filed a complaint at the International Trade Commission alleging a violation of Section 337 based on the importation, sale before importation, or sale after importation of U.S. Patent No. 5,467,455.  The proposed respondents are MediaTek Inc.; Zoran Corporation; Vizio, Inc.; Amtran Tech. Co., Ltd.; Amtran Logistics, Inc.; Sanyo Electric Co., Ltd.; Sanyo North America Corp.; Sanyo Manufacturing Corp.; TPV Technology Ltd.; TPV International (USA) Inc.; Top Victory Electronics (Taiwan) Co., Ltd.; Top Victory Electronics (Fujian) Co., Ltd.; AOC International (USA) Ltd.; and Envision Peripherals, Inc.

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On December 1, 2011, the Commission issued the public version of its opinion in Certain Inkjet Ink Cartridges with Printheads and Components Thereof, Inv. No. 337-TA-723. In that opinion, the Commission reversed the presiding ALJ’s finding that Complainants Hewlett-Packard Company and Hewlett-Packard Development Company, L.P. (collectively, “HP”) failed to establish that Respondents Asia Pacific Microsystems, Inc. (“APM”) induced infringement of the asserted patents. The Commission held that the intent element required for an inducement of infringement claim was satisfied because “prior to obtaining actual knowledge of the asserted patents, APM willfully blinded itself to the asserted patent and to the infringing conduct, and that even after obtaining actual knowledge of the asserted patent, APM continued to induce infringement of the patents.” Additionally, even though the ALJ found that HP failed to provide sufficient evidence to demonstrate that APM had knowledge of the asserted patent prior to the investigation, the Commission held that knowledge requirement was satisfied because “APM certainly had knowledge of the asserted patents and the allegations of infringement against its ICs once it was served with HP’s Complaint.” The Commission further held that APM waived any argument that there was insufficient proof of post-complaint direct infringement.

Based on its finding of induced infringement, the Commission determined to issue a general exclusion order directed to infringing articles in this investigation because the evidence established that it is difficult to identify the source of infringing products, making a general exclusion order necessary to prevent circumvention of a limited exclusion order. For instance, the Commission found that “foreign manufacturers package their products in unmarked, generic or reseller branded packaging that lacks any markings to identify their origin.”

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On November 28, 2011, ALJ Essex issued an order setting the procedural schedule in Inv. No. 337-TA-804, Certain LED Photographic Lighting Devices and Components Thereof. The hearing is scheduled to begin on June 18, 2012. The Complainants in the Investigation are Litepanels Inc. and Litepanels, Ltd., and the Respondents are Fotodiox, Inc.; Yuyao Fotodiox Photo Equipment, Co., Ltd.; Yuyao Lishuai Photo-Facility Co., Ltd.; Yuyao Lily Collection Co., Ltd.; Prompter People, Inc.; FloLight, LLC; Advanced Business Computer Services, LLC, d/b/a Cool Light USA; Ikan Corporation, Fuzhou F&V Photographic Equipment Co., Ltd.; Shantou Nanguang Photographic Equipment Co., Ltd.; and Elation Lighting, Inc.

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Chief ALJ Charles E. Bullock issued an order on November 21, 2011 that sets the target date for Certain Navigation Products, Components Thereof, and Related Software, Inv. No. 337-TA-810. The Investigation involving Complainants Furuno Electric Co. and Furuno U.S.A. and Respondents Honeywell International and Skyforce Avionics is currently set to conclude by March 4, 2013.

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