ITC Blog: ITC 337 Update

On October 28, 2010, the ITC released the public version of Chief ALJ Luckern’s October 14 order in Inv. No. 337-TA-720, granting complainant Cross Match Technologies, Inc.’s motion to amend the complaint to add allegations of infringement for claims 5, 6, 12, and 30 of U.S. Patent No. 7,277,562, and claims 7, 15, 19, and 45 of U.S. Patent No. 7,203,344. Judge Luckern found “good cause” to amend as required by Commission rule 210.14(b) because Cross Match discovered the alleged infringement from source code obtained during discovery. In addition, Judge Luckern held that the amendment was allowed under Ground Rule 1(I) of the investigation because it had been made over sixty days before the cut-off date for completion of expert discovery as required. The investigation is Certain Biometric Scanning Devices, Components Thereof, Associated Software, and Products Containing the Same.

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On October 26, ALJ Gildea issued an order setting the procedural schedule for Inv. No. 337-TA-736, Certain Wind and Solar-Powered Light Posts and Street Lamps. The trial is set to begin on June 14, 2011 with the initial determination by September 27, 2011 and a target date of January 27, 2012.

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Thomson Licensing SAS and Thomson Licensing LLC filed a letter on October 25, 2010, requesting that the International Trade Commission conduct an investigation under section 337 covering Certain Liquid Crystal Display Devices, Including Monitors, Televisions and Modules and Components Thereof. The proposed respondents are: Qisda Corporation; Qisda America Corporation; BenQ Corporation; BenQ America Corporation; BenQ Latin America Corporation; AU Optronics Corporation; and AU Optronics Corporation America.

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On October 22, ALJ Bullock issued notice of his Initial Determination in Inv. No. 337-TA-664, Certain Flash Memory Chips and Products Containing Same. In his Initial Determination, ALJ Bullock found that no violation of section 337 occurred in the importation into the United States, the sale for importation, or the sale within the United States after importation of certain flash memory devices and products containing same, in connection with claims 1-3 and 5-8 of U.S. Patent No. 6,376,877 and claims 13, 15-18 and 20-22 of U.S. Patent No. 5,715,194. In addition, ALJ Bullock found that a domestic industry does not exist that practices U.S. Patent Nos. 6,376,877 and 5,715,194. A complete public record of the Initial Determination will be issued once the parties have submitted their redactions and ALJ Bullock has had an opportunity to review those redactions.

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On October 20, 2010 Data Network Storage LLC filed a letter with the International Trade Commission requesting that the Commission conduct an investigation under section 337 regarding Certain Data Storage Products and Components Thereof. The proposed respondents are: NetApp, Inc.; Dell, Inc.; Xyratex, Ltd.; Xyratex International Inc.; Xyratex (Malaysia) Sdn. Bhd.; Dot Hill Systems Corp.; International Business Machines Corporation; Cisco Systems, Inc.; and QNAP Systems, Inc.

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On October 20, ALJ Rogers issued the public version of his October 12 order setting the target date in Inv. No. 337-TA-741, Certain Liquid Crystal Display Devices Including Monitors, Televisions, Modules, and Components Thereof. The initial determination will be due October 17, 2011 and the target date for completion of the investigation will be February 17, 2012.

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On October 19, Overland Storage filed a letter requesting that the International Trade Commission conduct an investigation under section 337 regarding certain automated devices. The proposed respondents are: BDT AG; BDT-Solutions Gmbh& Co. KG; BDT Automation Technology; BDT de Mexico, S. de R.L.de C.V.; BDT Products, Inc.; Dell Inc.; and International Business Machines Corporation.

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On October 18, Numark Industries, L.P. filed a letter requesting that the International Trade Commission conduct an investigation under section 337 regarding Certain Electronic Device Mixer Apparatus for Use in the Audio Disc-Jockey Industry. The proposed respondent is DJ-Tech Ltd. of Hong Kong.

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The Commission granted a motion for termination of Inv. No. 337-TA-698, Certain DC-DC Controllers and Products Containing Same, filed by complainant Richtek and consented to by respondent VisionTek Products LLC per a consent order stipulation. In the Consent Order, VisionTek agreed not to import into the United States, sell for importation into the United States, or sell or offer for sale after importation any DC-DC controllers or products containing the same that infringe U.S. Patent Nos. 7,315,190; 6,414,470; or 7,132,717, or induce any of the above importation activities. Entry of the Consent Order constitutes a determination of a violation of section 337 by respondent VisionTek.

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On October 13, 2010, ALJ Gildea issued an Initial Determination in Inv. No. 337-TA-718, Certain Electronic Paper Towel Dispensing Devices and Components Thereof, granting a joint motion to terminate the investigation as to respondent Ko-Am Corporation Inc. d/b/a Janitor’s World based on a consent order stipulation. Pursuant to the consent order, Ko-Am agrees not to directly or indirectly import into the United States, sell for importation into the United States, or sell within the United States after importation any electronic paper towel dispensing devices or components thereof that infringe asserted claims 1-7 of U.S. Pat. No. 6,871,815, asserted claims 1-22 of U.S. Pat. No. 7,017,856, asserted claims 1-3 of U.S. Pat. No. 7,182,289, or claims 1-22 of U.S. Pat. No. 7,387,274.

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On October 12, 2010, the Commission instituted Inv. No. 337-TA-742, Certain Digital Televisions and Components Thereof, based on a complaint filed September 15, 2010. The Complainant is LG Electronics, Inc. of Korea. The respondents are Vizio, Inc. of California, AmTRAN Technology Co., Ltd. of Taiwan, and AmTRAN Logistic, Inc. of California. The patents at issue are U.S. Pat. Nos. RE 37,070, 6,785,906, and 6,598,233.
 

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On October 12, 2010, the Commission instituted Inv. No. 337-TA-741, Certain Liquid Crystal Display Devices, Including Monitors, Televisions, and Modules, and Components Thereof, based on a complaint filed August 27, 2010. The Complainants are Thomson Licensing SAS of France and Thomson Licensing LLC of New Jersey. The respondents are Chimei Innolux Corp.; Innolux Corp.; Chi Mei Optoelectronics USA, Inc.; MStar Semiconductor, Inc.; Qisda Corp.; Qisda America Corp.; Qisda (Suzhou) Co., Ltd.; BenQ Corp.; BenQ America Corp.; BenQ Latin America; and Realtek Semiconductor Corp.. The patents at issue are U.S. Pat. Nos. 6,121,941, 5,978,063, 5,648,674, 5,621,556, and 5,375,006.
 

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On October 8, 2010, Broadcom Corporation and Global Locate, Inc. filed a letter requesting that the Commission conduct an investigation under section 337 regarding Global Positioning System ("GPS") Devices and Products Containing Same. The proposed respondents are SiRF Technology, Inc.; CSR plc; MiTAC International Corporation; Mio Technology Limited; MiTAC Digital Corporation; E-TEN Information Systems Co. Ltd. and Pharo Science & Applications, Inc. The complaint is not publicly available at this time.

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On October 6, 2010, the Commission instituted Inv. No. 337-TA-740, Certain Toner Cartridges and Components Thereof, based on a complaint filed by Lexmark International, Inc. on August 20, 2010.  The respondents are Ninestar Image Co. Ltd.; Ninestar Image Int’l, Ltd.; Seine Image International Co. Ltd.; Ninestar Technology Company, Ltd.; Ziprint Image Corporation; Nano Pacific Corporation; IJSS Inc.(d/b/a TonerZone.com Inc. and Inkjet Superstore); Chung Pal Shin (d/b/a Ink Master); Nectron International, Inc.; Quality Cartridges Inc.; Direct Billing International Incorporated (d/b/a Office Supply Outfitter and d/b/a The Ribbon Connection); E-Toner Mart, Inc.; Alpha Image Tech; ACM Technologies, Inc.; Virtual Imaging Products Inc.; Acecom Inc. – San Antonio; Ink Technologies Printer Supplies, LLC; Jahwa Electronics Co., Ltd; Huizhou Jahwa Electronics Co., Ltd.; Copy Technologies, Inc.; Laser Toner Technologies, Inc.; C & R Services, Incorporated.; Print-Rite Holdings Ltd.; Union Technology Int’l (M.C.O.) Co. The investigation involves allegations of violations of section 337 based upon infringement of certain claims of 15 different patents. Details of the patents and claims at issue can be found in the Notice of Investigation.  The investigation has been assigned to ALJ Charneski.

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ALJ Rogers issued an order setting the procedural schedule in Inv. No. 337-TA-735, Certain Flash Memory Chips and Products Containing Same. The trial is set to begin on June 20, 2011 with the initial determination by September 12, 2011 and a target date of January 12, 2012.

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The Federal Circuit reversed the Commission’s determination of violation under section 337 and vacated the corresponding exclusion orders and cease-and-desist orders today in its opinion Lucky Litter LLC v. ITC. As Inv. No. 337-TA-625, Certain Self-Cleaning Litter Boxes And Components Thereof, the Commission had previously ruled in favor of complainants Applica Consumer Products, Inc. and Waters Research Company, that respondents Lucky Litter LLC and OurPet’s Company’s self-cleaning letter boxes violated section 337.

At issue in the case is U.S. Patent No. RE 36,847 (‘847 patent). The Commission held that the respondent’s product infringed claim 33 of the ‘847 patent. The Federal Circuit held that the Commission erred in construing claim 33 to include a “cat exit,” which was contrary to the plain meaning of the claim. The court further held that when properly construed without this limitation, Claim 33 would have been obvious. Intervenor Applica proffered additional grounds to uphold the exclusion order, which the court rejected as without merit.
 

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On October 6, 2010, Motorola Mobility, Inc. filed a letter requesting that the Commission conduct an investigation under section 337 regarding Certain Wireless Communication Devices, Portable Music and Data Processing Devices, Computers and Components thereof. The proposed respondent is Apple, Inc. The docket number is 2759, and the complaint is expected to be publicly available shortly.

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ALJ Rogers denied a renewed motion for termination based on entry of a consent order filed by respondents Mipo Science and Technology Co., Ltd. and Mipo Technology Ltd. (collectively “Mipo”) on September 30, 2010 in Inv. No. 337-TA-723, Certain Inkjet Cartridges with Printheads and Components Thereof. The Commission Investigative Staff filed a response opposing the motion on October 1, 2010. ALJ Rogers denied the motion because it included improper language stating that Mipo would not import products that infringe the asserted patents “until Mipo’s products are found not to infringe.” ALJ Rogers held that this language was contrary to a “consent order” because such an order could be invalidated by a non-infringement ruling from another forum. Additionally ALJ Rogers held that the consent order was improper because it included claims that were not within the scope of the investigation.

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ALJ Rogers issued an order suspending the procedural schedule in Inv. No. 337-TA-705, Certain Notebook Computer Products and Components Thereof. This order follows a joint motion filed on October 4, 2010 by complainant Toshiba Corporation and Respondents Wistron Corporation, Wistron InfoComm (Texas) Corporation, and Wistron InfoComm Technology (America) Corporation for termination of the investigation based on settlement. ALJ Rogers will rule on the joint motion for termination after receiving a response from the Commission Investigative Staff.

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ALJ Essex has issued an order setting the procedural schedule in Inv. No. 337-TA-730, Certain Inkjet Ink Supplies and Components Thereof. The trial is set to begin on April 25, 2011 with the initial determination by August 5, 2011 and a target date of December 5, 2011.

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