ITC Blog: ITC 337 Update

On November 24, 2010, Notice was published at 75 F.R. 71737 of new investigation Inv. No. 337-TA-747, entitled In the Matter of Certain Products Containing Interactive Program Guide and Parental Control Technology. The Complainants are Rovi Corporation, Rovi Guides, Inc., United Video Properties, Inc. and Index Systems, Inc. and the proposed Respondents are Toshiba Corp., Toshiba America, Inc., Toshiba America Consumer Products, L.L.C., and Toshiba America Information Systems, Inc. The staff attorney is Thomas S. Fusco.

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On November 23, 2010, ALJ Gildea issued an Order construing many claim terms in six asserted patents in Inv. No. 337-TA-701, In the Matter of Certain Electronic Devices, Including Mobile Phones, Portable Music Players, and Computers.

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On November 23, 2010, the Commission assigned Theodore R. Essex to Inv. No. 337-TA-750, In the Matter of Certain Mobile Devices and Related Software.

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On November 23, 2010, the Commission issued a Notice of Institution of investigation pursuant to Section 1337: Inv. No. 337-TA-749, In the Matter of Certain Liquid Crystal Display Devices, Including Monitors, Televisions, and Modules, and Components Thereof.  The Complainants are Thomson Licensing SAS and Thomson Licensing LLC.  The Respondents are Qisda Corp., Qisda America Corp., Qisda (Suzhou) Co., Ltd., BenQ Corp., BenQ America Corp., BenQ Latin America Corp., AU Optronics Corp., and AU Optronics Corp. America. The Investigation has been assigned to Robert K. Rogers, Jr.

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In Enforcement Proceedings in Inv. No. 337-TA-617, ALJ Charneski issued an Order granting an Unopposed Motion of the Funai Complainants to terminate the proceedings based upon the conditional withdrawal of the complaint.  Funai’s motion to terminate, stated in part, “the private parties have met and conferred and Funai has agreed to submit a letter to Customs to clarify that importation of TPV-made DTVs with the Redesigned Chipsets that were the subject of this Enforcement Proceeding is not covered by the Limited Exclusion Order issued in the original investigation.”

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On November 22, 2010, the Commission issued a Notice of its intent to review a portion of the final initial determination issued by the ALJ finding a violation of section 337 in Inv. No. 337-TA-690, In the Matter of Certain Printing and Imaging Devices and Components Thereof.

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On November 19, 2010, the public version of ALJ Charneski’s ID granting Complainant’s Motion for Summary Determination Concerning the Economic Prong of the Domestic Industry Requirement, and finding a violation of Section 337 in Inv. No. 337-TA-637, In the Matter of Certain Hair Irons and Packaging Thereof. ALJ Charneski ruled that no genuine issues of material fact precluded summary determination that complainant satisfied the technical and economic prong of the domestic industry requirement.

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The Commission determined to review the final Initial Determination and set a procedural schedule for briefing on the issues under review as well as for briefing on remedy, public interest and bonding in Inv. No. 337-TA-687, In the Matter of Certain Video Displays, Components Thereof, and Products Containing Same.  The Commission determined to review the Initial Determination ("ID") in part, including: (1) the ID's finding that the record evidence shows, clearly and convincingly, that claims 4, 6, and 7 of U.S. Patent No. 5,537,612 are invalid as anticipated or obvious; and (2) the ID's findings and conclusions with respect to independent claim 5 of the 7,154,564 patent, in particular whether the record evidence shows that claim 5 is infringed. The Commission also requested written submissions regarding the form of remedy, if any, that should be ordered, whether the public interest factors support a remedy, and the amount of any bond to be imposed.  All written submissions should be received no later than December 3, 2010 and reply submissions should be received no later than December 10, 2010.

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ALJ Essex issued an Initial Determination terminating Mextec d/b/a Mipo America Ltd. based on a settlement agreement in Inv. No. 337-TA-730, In the Matter of Certain Inkjet Ink Supplies and Components Thereof.  Judge Essex's order granting the termination of Mipo found that there was "no indication that termination [of Mipo] . . . would have an adverse impact on the public interest."  The terms of the settlement agreement are confidential and the public version filed with the ITC is highly redacted.

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The Commission issued a notice of investigation in Inv. No. 337-TA-748, In the Matter of Certain Data Storage Products and Components Thereof.  The complaint, filed October 20, 2010, alleges a violation of Section 337 based upon the importation into the United States, the sale for importation, and the sale within the United States after importation of certain data storage products and components.  The identified products are accused of infringing U.S. Patent No. 6,098,128.  The complaint, filed by Data Network Storage, LLC names NetApp, Inc., Dell, Inc., Xyratex Ltd., Xyratex International Inc., Xyratex (Malaysia) Sdn Bhd, Dot Hill Systems Corp., International Business Machines Corp., Cisco Systems, Inc., and QNAP Systems, Inc. as respondents.

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Chief ALJ Luckern assigned ALJ Bullock to Inv. No. 337-TA-746, In the Matter of Certain Automated Media Library Devices.

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The Commission issued a notice of investigation in Inv. No. 337-TA-746, In the Matter of Certain Automated Media Library Devices.  The complaint, filed October 19, 2010, alleges a violation of Section 337 based upon the importation into the United States, the sale for importation, and the sale within the United States after importation of certain automated media library devices.  The identified products are accused of infringing U.S. Patent No. 6,328,766 and U.S. Patent No. 6,353,581.  The complaint, filed by Overland Storage, Inc. names BDT AG, BDT-Solutions GmbH & Co. KG, BDT Automation Technology (Zhuhai FTZ), BDT de Mexico, S. de R.L. de C.V., BDT Products, Inc., Dell Inc., and International Business Machines Corp. as respondents.

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The Commission issued a notice of investigation in Inv. No. 337-TA-747, In the Matter of Certain Products Containing Interactive Program Guide and Parental Controls Technology.  The complaint, filed on October 20, 2010, alleges a violation of Section 337 based upon the importation into the United States, the sale for importation, and the sale within the United States after importation of certain products containing an interactive program guide and parental control technology.  The identified products are accused of infringing U.S. Patent No. 6,305,016, U.S. Patent No. 6,020,929, and U.S. Patent No. 6,701,523.  The complaint, filed by Rovi Corp., Rovi Guides, Inc., United Video Properties, Inc. and Index Systems, Inc. names Toshiba Corp, Toshiba America, Inc., Toshiba America Consumer Products, L.L.C., and Toshiba America Informaiton Systems, Inc. as respondents.

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Chief ALJ Luckern assigned ALJ Gildea to Inv. No. 337-TA-747, In the Matter of Certain Products Containing Interactive Program Guide and Parental Controls Technology.

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Chief ALJ Luckern assigned ALJ Charneski to Inv. No. 337-TA-748, In the Matter of Certain Data Storage Products and Components Thereof. 

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The U.S. International Trade Commission determined not to review an Initial Determination terminating MIPO Science & Technology Co., Ltd. and MIPO Technology Limited based on a consent order in Inv. No. 337-TA-723, In the Matter of Certain Inkjet Ink Cartridges with Printheads and Components Thereof. 

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ALJ Rogers set the procedural schedule in Inv. No. 337-TA-741, In the Matter of Certain Liquid Crystal Display Devices, Including Monitors, Televisions, and Modules, And Components Thereof.  ALJ Rogers' schedule set February 17, 2012 as the target date for completion of the Investigation and scheduled the hearing in this Investigation for August 1, 2011.

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ALJ Charneski entered a summary determination order denying Spansion, Inc. and Spansion LLC's ("Spansion") motion of invalidity of U.S. Patent No. 5,740,065 under 35 U.S.C. § 112, ¶¶ 1 and 2 in Inv. No. 337-TA-685, In the Matter of Certain Flash Memory and Products Containing Same.  In denying Spansion's motion, the ALJ found that the Section 112 issues raised "cannot be resolved without the benefit of a hearing record, particularly expert testimony."  Thus, ALJ Charneski held that Spansion's motion was premature and denied the motion on that basis.

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Chief ALJ Luckern held that respondent Satistec, LLC failed to show cause for its failure to respond to the notice of investigation and, thus, issued an Initial Determination finding Satistec in default in Inv. No. 337-TA-732, In the Matter of Certain Devices Having Elastomeric Gel and Components Thereof.  Previously, on September 15, 2010, complainant Interactive Life Form, LLC moved for an order directing Satistec to show cause why it should not be held in default for failing to respond to the amended complaint and notice of investigation.  On September 29, 2010, Chief ALJ Luckern ordered respondent Satistec to show cause, no later than the close of business on October 13, 2010, why it should not be found in default.  Satistec failed to respond.  As a result, Chief ALJ Luckern found Satistec in default pursuant to Commission Rule 210.16.

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Complainant Georgia-Pacific Consumer Products LP ("Georgia-Pacific") and Respondents Draco Hygienic Products, Inc., Vida International Inc., New Choice (H.K.) Ltd., Kruger Products LP, and KTG USA (collectively "Draco Respondents") filed a joint motion to terminate the investigation as to the Draco respondents based on a consent order stipulatoin in Inv. No. 337-TA-718, In the Matter of Certain Electronic Paper Towel Dispensing Devices and Components Thereof.  The consent order states that the Draco Respondents will not import, sell or offer for sale after importation any electronic paper towel dispensing devices or components thereof that infringe claims 1-2 and 4 of U.S. Patent 6,871,815; claims 1-4, 4-8, 12-15 and 19-22 of U.S. Patent 7,017,856; claim 1 of U.S. Patent 7,182,289; and  claims 1-2, 4, 8-12 and 16-22 of U.S. Patent 7,387,274.
 

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The Commission Opinion modifies ALJ Charneski's final initial determination ("ID") and finding of no violoation of Section 337 of the Tariff Act of 1930 (19 U.S.C. § 1337) exists in Inv. No. 337-TA-680, In the Matter of Certain Machine Vision Software, Machine Vision Systems and Products Containing Same. On July 16, 2010, the ALJ issued his final ID finding no violation of section 337 by the remaining respondents MVTec Software GmbH; MVTec LLCTech; Omron Corporation; Resolution Technology, Inc.; Visics Corp.; Daiichi Jitsugyo Viswill Co., Ltd.; and Daiichi Jitsugyo (America), Inc.  The ALJ concluded that each accused product did not infringe any asserted claim of the '539 or '262 patents. Also, the ALJ found that claims 1, 12, 13, 28, and 29 of the '262 patent are anticipated under 35 U.S.C. § 102. Further, the ALJ found that all asserted claims of both patents are invalid pursuant to 35 U.S.C. § 101 for failure to claim patent-eligible subject matter.

The Commission Opinion modifies-in-part the final ID but affirms the ALJ's ruling that the '539 and '262 patents fail to claim patent-eligible subject matter pursuant to § 101 because they do not satisfy the "machine-or-transformation" test.  The Commission Opinion sets aside the the part of teh final ID finding that claims 1, 12, 13, 28, and 29 of the '262 patent are invalid as anticipated.  All other findings in the ID were affirmed by the Commission.

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Interactive Life Forms, LLC ("ILF") filed a motion to terminate the investigation as to Easybuy, Inc. d/b/a/ Blush Novelties based on a consent order in Inv. No. 337-TA-732, In the Matter of Certain Devices Having Elastomeric Gel and Components Thereof.  The consent order states that Easybuy Inc. will not import, sell or offer for sale after importation, or knowingly aid, abet, encourage, participate in or induce importatation of any accused product or product which infringes U.S. Patent Nos. 5,782,818 or 5,807,360.

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Complainant Radiodetection, Ltd. and Respondents Vivax-Metrotech Corp., Seba KMT, and Leidi Utility Supply Ltd. filed a joint motion to terminate the investigation based on a settlement agreement in Inv. No. 337-TA-727, In the Matter of Certain Underground Cable and Pipe Locators.  The public version of the settlement agreement, filed as an exhibit to the joint motion, indicates that Respondents have entered into a license to U.S. Patent Nos. 6,268,731 and 5,260,659 (and their foreign counterparts).  This settlement appears to also resove the pending Eastern District of Virginia litigation (Case No. 1:10-CV-00644), but explicitly "does not releease [Leidi Utility Supply] from any claims, obligations, or demands in litigation between Radiodetection and [Leidi Utility Supply] currently pending in Chinese courts."

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Complainant Radiodetection, Ltd. and Respondents Vivax-Metrotech Corp., Seba KMT, and Leidi Utility Suply Ltd. filed a joint motion to stay the investigation in Inv. No. 337-TA-727, In the Matter of Certain Underground Cable and Pipe Locators.  The parties represented that a stay is warranted because "Complainant and Respondents have been engaged in serious settlement negotiations and, as a result, are concurrently filing a motion to terminate this investigation based on reaching a settlement."  The Staff reserved its position until it could review the papers.

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ALJ Charneski issued an order denying Spansion Inc. and Spansion LLC's motion for summary determination of invalidity of U.S. Patent No. 5,740,065 under 35 U.S.C. § 101 in Inv. No. 337-TA-385, In the Matter of Certain Flash Memory and Products Containing Same.  Spansion's motion, which argued that the '065 Patent covered unpatentable subject matter, was opposed by both the Complainat Samsung Electronics Co., Ltd. ("Samsung") and the Staff.  In denying the motion ALJ Charneski held that "[w]hile there may be no disputed issues of material fact . . . Samsung and the Staff offer a more compelling argument for as to why summary determination is not appropriate."

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The U.S. International Trade Commission determined not to review the initial determination terminating the investigation as to the remaining respondents based on a consent order in Inv. No. 337-TA-722, In the Matter of Certain Automotive Vehicles and Designs Thereof. The consent order was entered into by the Complainant Chrysler Group LLC and Respondents Xingyue Group Co .. Ltd., Shanghai Xingyue Power Machinery Co., Ltd ., Shanghai Xingyue USA, Inc., Zhejiang Xingyue Vehicle Co. Ltd., and Crossville BNRV Sales, LLC, LLC d/b/a/ Boat-N-RV Supercenter. No party to the investigation petitioned for review of the initiatil determination. Remedy issues as to the defaulting respondents (Vehicles Online and Shanghai Tandem) remain to be resolved by the ALJ.

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Interactive Life Forms, LLC ("ILF") filed motions to termination the investigation as to TEG, LLC ("TEG") and Spencer Gifts LLC ("Spencer) based on consent orders in Inv. No. 337-TA-732, In the Matter of Certain Devices Having Elastomeric Gel and Components Thereof.  The consent orders state that TEG and Spencer Gifts will not import, sell or offer for sale after importation, or knowingly aid, abet, encourage, participate in or induce importatation of any accused product or product which infringes U.S. Patent Nos. 5,782,818 or 5,807,360.

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ALJ Rogers issued an  order denying Asia Pacific Microsystems, Inc.'s motion to dismiss the investigation and motion for sanctions against complainant Hewlett-Packard Co. and Hewlett Packard Development Co. ("HP") in Inv. No. 337-TA-723, In the Matter of Certain Inkjet Ink Cartridges With Printheads and Components Thereof.  APM's motion was opposed by both the Staff and HP who argued that APM failed to comply with the "safe harbor" provision of Commission Rule 210.4(d) before filing the motion for sanctions.  ALJ Rogers agreed with the Staff and HP and denied AMP's motion for failure to comply with Commission Rule 210.4(d).

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ALJ Rogers issued an order granting a joint motion to terminate the investigation as to Samsung Electronics based on a consent order in Inv. No. 337-TA-729, In the Matter of Certain Semiconductor Products Made by Advanced Lithography Techniques and Products Containing Same.  Samsung's termination was based on a "fully paid-up worldwide license" covering U.S. Pat. No. 6,042,998 and other undisclosed patents.  The compensation paid by Samsung Electronics Co. was not disclosed.

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On November 10, 2010, the public versions of ALJ Rodgers' initial determinations issued granting Hewlett Packard's motions to terminate the investigation as to Sino Time Technologies d/b/a All Colors and Mextec d/b/a Mipo America Ltd. in Inv. No. 337-TA-723, Certain Inkjet Ink Cartridges with Printheads and Components Thereof.  HP reached a settlement agreement with each of the respondents.

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ALJ Rodgers set a November 4, 2011 initial determination date and a March 5, 2012 target date for completion of the investigation in Inv. No. 337-TA-743, Certain Video Game Systems and Controllers.  The complainant is Motiva, LLC.  The respondents are Nintendo Co., Ltd. and Nintendo of America, Inc.

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ALJ Bullock set the procedural schedule in Inv. No. 337-TA-739 relating to Certain Ground Fault Circuit Interrupters and Productions Containing Same.  The hearing is scheduled for July 25, 2011 - August 3, 2011 with a November 8, 2011 initial determination due date and March 8, 2012 target date for completion of the investigation.  The complainant is Leviton Mfg. Co.  The respondents are Fujian Hongan Elec. Co., Ltd.; General Protecht Group, Inc.; Shanghai ELE Mfg. Corp.; Zhejiang Trimone Co. Ltd.; Zhejiang Easting House Elec. Co.; Menard, Inc.; Frontier Lighting, Inc.; The Designers Edge, Inc.; Garvin Industries, Inc.; Central Purchasing, LLC; Orbit Industries, Inc.; Harbor Freight Tools USA, Inc.; Ready Wholesale Electric and Lighting, Inc.; Warehouse-Lighting.com LLC; Sutherland Lumber Co. of Kansas City, LLC d/b/a Sutherlands; SecurElectric Corp.; W.E. Aubuchon Co., Inc. d/b/a Aubuchon Hardware; G-Techt Global Corp.; Westside Wholesale Electric & Lighting, Inc.; Deerso, Inc.; Contractor Lighting & Supply, Inc.; Interline Brands, Inc. d/b/a AF Lighting; New Aspen Devices Corp.; American Ace Supply Inc.; Royal Pacific Ltd.; Safety Plus Products, Inc.; Littman Bros. Energy Supplies, Inc.; Norcross Electric Supply Co.; Ingram Prods., Inc.; and American Electric Depot Inc.

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United Technologies Corporation filed a letter on November 5, 2010 requesting that the International Trade Commission conduct an investigation under Section 337 covering Certain Turbomachinery Blades, Engines, and Components that allegedly infringe U.S. Reissue Patent RE38,040. The proposed respondents are Rolls-Royce Group plc and Rolls-Royce plc.

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On November 3, 2010, the Commission instituted Inv. No. 337-TA-745, Certain Wireless Communication Devices, Portable Music and Data Processing Devices, Computers, and Components Thereof.  The investigation is based on a complaint filed October 6, 2010, alleging violations of Section 337 based upon infringement of U.S. Patent No. 6,272,333; 6,246,862; 6,246,697; 5,359,317; 5,636,223; and 7,751,826. The Complainant is Motorola Mobility, Inc., and the respondent is Apple, Inc.  The investigation has been assigned to Chief ALJ Luckern.
 

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ALJ Gildea, in two separate orders, terminated respondents Paradigm Marketing Consortium d/b/a United Supply Systems, United Sourcing Network Corporation, and Alliance in Manufacturing LLC from Inv. No. 337-TA-718, Certain Electronic Paper Towel Dispensing Devices And Components Thereof, based on consent orders.  In both consent orders, the respondents agree not to directly or indirectly import, sell for importation into the United States, or sell within the United States after importation electronic paper towel dispensing devices that infringe the asserted claims in the investigation.

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Complainant STC.UNM and Respondent Samsung have jointly moved to terminate Inv. No. 337-TA-729, Certain Semiconductor Products Made By Advanced Lithography Techniques And Products Containing Same, as to Samsung based on a settlement agreement.  The remaining respondent, Taiwan Semiconductor Mfg. Co., had earlier entered into a settlement agreement with the complainant.

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On October 29, 2010, complainant Samsung Electronics Co., Ltd. filed a motion to partially terminate Investigation No. 337-TA-665, Certain Flash Memory And Products Containing Same.  Samsung's motion requests that it be permitted to withdraw claims 1-7 and 11 of U.S. Patent No. 5,740,065 from the investigation, and notes that respondents do not oppose the motion.

UPDATE: On November 2, 2010 ALJ Charneski has issued an order granting Samsung's motion to withdraw the above-noted claims.  The ALJ has also denied as moot two motions for non-infringement of the above claims.

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On October 29, 2010 a complaint was filed in the ITC, requesting that the Commission conduct an investigation into whether or not section 337 has been violated due to the importation of certain mobile devices and related software.  The proposed respondents are Motorola, Inc. and Motorola Mobility, Inc.  The complainant is Apple Inc.  The complaint has been given Docket No. 2768.

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