ITC Blog: ITC 337 Update

On June 24, 2011, the Commission gave notice of its determination that no violation of Section 337 existed in Inv. No. 337-TA-694, Certain Multimedia Display and Navigation Devices and Systems, Components Thereof, and Products Containing the Same, and terminated the investigation. The Commission provided notice that it determined to affirm, on modified grounds, the final ID issued by the ALJ on December 16, 2010, finding no violation of section 337. With regard to the first asserted patent, the Commission reversed the ALJ’s finding of no infringement. With regard to the second asserted patent, the Commission affirmed the ALJ’s finding of no infringement but reversed his finding that the patent was not invalid under section 112, first paragraph. In addition, with regard to both patents, the Commission reversed the ALJ’s finding that Complainant had established a licensing-based domestic industry.

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On June 24, 2011, the Commission issued a Notice of Institution of Investigation in Certain Protective Cases and Components Thereof, Inv. No. 337-TA-780, based on a complaint filed May 25, 2011. The complainant is Otter Products, Inc. The respondents are A.G. Findings and Mfg. Co., Inc., AFC Trident Inc., Alibaba.com Hong Kong Ltd., Anbess Electronics Co. Ltd., Cellairis Franchise, Inc., Cellet Products, DHgate.com, Griffin Technology, Inc., Guangzhou Evotech Industry Col, Ltd., Hardcandy Cases LLC, Hoffco Brands, Inc., Hong Kong Better Technology Group Ltd., Hong Kong HJJ Co. Ltd., Hypercel Corporation, InMotion Entertainment, MegaWatts Computers, LLC, National Cellular, OEMBargain.com, One Step Up Ltd., Papaya Holdings Ltd., Quanyun Electronics Col, Ltd., ShenZhen Star & Way Trade Col., Ltd., Sinatech Industrial Col., Ltd., SmileCase, Suntel Global Investment Ltd., TheCaseInPoint.com, TheCaseSpace, Toper Technology Co. Ltd. and Trai Technology (Shenzhen) Col, Ltd. The case involves allegations of patent infringement and trademark infringement. The patents include U.S. Patent Nos. 7,933,122, D600,908, D617,784, D615,536, D617,785, D634,741, and D636,386. The trademarks include Trademark Registration Nos. 3,788,534, 3,788,535, 3,632,789 and 3,795,187.

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On June 24, 2011, ALJ Gildea issued the public version of his May 20, 2011 Initial Determination on Violation of Section 337 and Recommended Determination on Remedy and Bond in Inv. No. 337-TA-712, Certain Digital Set-Top Boxes and Components Thereof. In the ID, ALJ Gildea held that a domestic industry exists that practices one of the asserted patents, but that no domestic industry exists that practice the other four asserted patents. ALJ Gildea also held that Respondent Cablevision Systems Corp. infringed one of the claims of the patent for which a domestic industry was established. ALJ Gildea further held that Cablevision did not infringe any claims of the remaining four patents.

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The Commission determined to extend the target date for its review an Initial Determination finding no violation of Section 337 in Inv. No. 337-TA-703, Certain Mobile Telephones and Wireless Communication Devices Featuring Digital Cameras, and Components Thereof. On January 24, 2011, the ALJ issued a final Initial Determination finding that there was no violation of Section 337 by Respondents Apple, Inc., Research in Motion, Ltd., and Research in Motion Corp. All parties filed petitions for review, and on March 25, 2011 the Commission determined to review the ID in its entirety. Pursuant to Rule 210.51, the commission extended the target date for its review by one week to June 30, 2011.

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The Commission extended the target date in Inv. No. 337-TA-685, Certain Flash Memory and Products Containing Same. The Commission's order extending the target date by one month to July 28, 2011 was the result of a consent motion to terminate the investigation in its entirety based on a settlement agreement filed by Samsung Electronics Co., Ltd. ("Samsung"). The only remaining participating respondents in this investigation were Spansion, LLC, Spansion, Inc. ("Spansion"), D-Link Corp. and D-Link Systems Inc. ("D-Link").

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ALJ Rodgers set the target date for October 16, 2012 in Inv. No. 337-TA-777, Certain Muzzle-Loading Firearms and Components Thereof. ALJ Rogers further set June 18, 2012--a Saturday--as the due date for an initial determination. Because the initial determination is due on a Saturday it will not actually be due until the business day, June 20, 2012. The investigation, filed by Thompson/Center Arms Co. alleges infringement of six different patents by Respondents Dikar Sociedad Cooperativa Limitada; Bergara Barrels Europe; Blackpoweder Products Inc.; Connecticut Valley Arms; Bergara Barrels North America; Ardesa Firearms; and Traditional Sporting Goods, Inc.

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Respondents Mad Catz, Inc. ("Mad Catz") and VTech Holdings, Ltd. ("VTech") filed motions to stay pending deadlines because a settlement between Mad Catz and Ogma, LLC and between VTech and Ogma, LLC had been reached in Inv. No. 337-TA-773, Certain Motion-Sensitive Sound Effects Devices and Image Display Devices and Components and Products Containing Same. In anticipation of imminent motions to terminate the investigation with regard to each of these respondents, ALJ Gildea granted the respective motions to stay on the basis of the settlement agreements.

Complainant Ogma, LLC ("Ogma") also filed a motion to terminate the investigation as to Respondent ViewSonic Corp. ("ViewSonic").  The motion states that Ogma and ViewSonic have reached a license agreement which resolves all outstanding issues between the two companies.  The licensing agreement includes a covenant by Ogma that it will not sue ViewSonic for infringement of the 5,825,427 patent and in consideration ViewSonic agreed to pay Ogma an undisclosed amount payable in two installments (on June 15, 2011 and July 15, 2011).

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The Commission determined not to review an Initial Determination to partially terminate the investigation by S3G's withdrawal of its allegations that Apple infringes claims 2, 8, 18, and 19 of U.S. Patent No. 6,658,146; claims 1, 8, and 13 of U.S. Patent No. 6,775,417; and claim 7 of U.S. Patent No. 7,043,087 in Inv. No. 337-TA-724, Certain Electronics Devices with Image Processing Systems, Components Thereof, and Associated Software. On March 11, 2011, S3G's filed an initial motion to partially terminate the investigation. This motion was denied by the ALJ because S3G failed to identify certain agreements between the parties as required by Rule 210.21(a). S3G filed a renewed unopposed motion and in their renewed motion S3G identified four stipulated agreements. This renewed motion was granted by the ALJ. The Commission determined not to review the ALJ's grant of partial termination.

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Complainants Remy International, Inc. and Remy Tech., LLC ("Remy") filed a motion to partially terminate the investigation as to Respondent Linhai Yongci ("Linhai") based on the parties having entered into a settlement agreement in Inv. No. 337-TA-755, Certain Starter Motors and Alternators. In its motion, Remy indicated that the settlement agreement would not have any adverse effect on the public health and welfare and/or competitive conditions in the United States. The terms of the settlement agreement were highly redacted, however, it appears that the settlement includes at least a license to U.S. Patent Nos. 5,105,114; 5,252,878; 5,268,605; 5,295,404; 5,307,700; 5,315,195; 5,453,648.

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On June 16, the Commission issued a notice of investigation, based on a complaint filed May 17, 2011, instituting Inv. No. 337-TA-778, Certain Equipment For Communications Networks, Including Switches, Routers, Gateways, Bridges, Wireless Access Points, Cable Modems, IP Phones, and Products Containing Same.  The complainant is MOSAID Technologies Inc., and the respondents are Cisco Systems, Inc.; Cisco Consumer Products LLC; Cisco Systems International B.V.; and Scientific Atlanta LLC.  The patents asserted to be infringed are U.S. Patent Nos. 7,035,280; 7,292,600; 7,830,858; 6,842,459; 7,633,966; and 5,841,360. The investigation has been assigned to ALJ Gildea.

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On June 16, ALJ Gildea altered the hearing schedule in Inv. No. 337-TA-747, Certain Products Containing Interactive Program Guide and Parental Controls Technology, to move the beginning of the hearing to January 5, 2012.  The hearing was moved forward due to a change in the ALJ's schedule.

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ALJ Rodgers granted a joint motion filed by Complainant Spansion, LLC ("Spansion") and respondent Samsung Electronics Co., Ltd. ("Samsung") to terminate the investigation based on a settlement agreement in Inv. No. 337-TA-735, Certain Flash Memory Chips and Products Containing Same. ALJ Rodgers' Initial Determination notes that "while there are other respondents in this investigation" the settlement between Samsung and Spansion "resolves this investigation in its entirety." ALJ Rodgers, after finding that the termination of this investigation would not adversely impact the public interest, issued an initial determination terminating this investigation in its entirety.

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Complainant Ogma, LLC ("Ogma") and respondent Vivitek Corp. ("Vivitek") filed a joint motion to terminate the investigation as to Respondent Vivitek based on the parties having entered into a settlement agreement in Inv. No. 337-TA-773, Certain Motion-Sensitive Sound Effects Devices and Image Display Devices and Components and Products Containing Same. The basis of the motion is Vivitek's agreement with third party RPX Corp. RPX is a licensee of Ogma's patents and under its agreement with Ogma, RPX has the right to sub-license those patents to Vivitek. The parties also state that the termination of the investigation as to Vivitek will have no adverse effects on the public interest.

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Complainant Rambus Inc. ("Rambus") and respondent Freescale Semiconductor, Inc. ("Freescale") filed a joint motion on June 7, 2011 to terminate the investigation as to Respondent Freescale based on the parties having entered into a settlement agreement in Inv. No. 337-TA-753, Certain Semiconductor Chips and Products Containing Same. In his Order granting the joint motion, ALJ Essex found that the motion complied with the requirements of Rules 210.21(b) and that there was no indication that termination of Freescale based on a settlement agreement would have an adverse impact on the public interest. Accordingly, ALJ Essex issued an initial determination terminating the investigation as to Freescale. The terms of the settlement agreement were largely redacted.

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Complainant Femina Pharma Inc. moved for entry of an Initial Determination finding 14 Respondents in default in Inv. No. 337-TA-768, Certain Vaginal Ring Birth Control Devices. Complainant's motion requested that the ALJ find 14 "nonparticipating" respondents in default. The identified respondents included: The Canamerican Drugs Inc.; The Canamerican Global Inc.; Canadian Med Service; Panther Meds Inc.; Canada Drugs Online; Drug World Canada; CanDrug Health Solutions Inc.; Big Mountain Drugs; BestBuyRx.com; Blue Sky Drugs; ABC Online Pharmacy; Canadadrugs.com LP; North Drug Store; and Canada Pharmacy. The Staff opposed the motion on the grounds that Rule 210.16 requires an order to show cause before an initial determination of default be entered. In his order, Chief Judge Luckern, rather than grant the motion for default, ordered that the fourteen named "nonparticipating respondents" show cause as to why they should not found to be in default.

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On June 14, 2011 a complaint was filed by Trek 2000 International, Ltd., Trek Technology (Singapore) Pte. Ltd. and S-Com System (S) Pte. Ltd. requesting that the International Trade Commission open an investigation into the importation of USB portable storage devices, including USB flash drives and components thereof.  The proposed respondents are Imation Corp.; IronKey, Inc.; Kingston Technology Co., Inc.; Patriot Memory LLC; RITEK Corp.; Advanced Media Inc./RITEK USA; Verbatim Corporation, Inc.; and Verbatim Americas, LLC. 

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ALJ Gildea has issued an initial determination terminating Inv. No. 337-TA-767, Certain Glassware, on the basis of a consent order between the parties.  The ALJ found that under the terms of the consent order, the Respondents agreed not to import into the United States any of the accused products without a license from the complainant, Boston Beer Co., and to destroy all of the accused products other than those the complainant authorized respondents to maintain, and that termination of the investigation was in the public interest.

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On June 14, the Commission instituted Inv. No. 337-TA-777, Certain Muzzle Loading Firearms and Components Thereof, based on a complaint and motion for temporary relief filed May 11, 2011 by Thomson/Center Arms Co., Inc. and Smith & Wesson Corp. The patents asserted in the investigation are U.S. Patent Nos. 7,908,781; 7,814,694; 7,140,138; 6,604,311; 5,782,030; and 5,639,981.  The respondents are Dikar Sociedad Cooperativa Limitada; Bergara Barrels Europe; Blackpower Products Inc.; Connecticut Valley Arms; Bergara Barrels North America; Ardesa Firearms; and Traditional Sporting Goods d/b/a Traditions Sporting Firearms. The case has been assigned to ALJ Rogers, who issued an order finding the case "more complicated" due to the request for temporary relief.  Trial on the motion for temporary relief was set for August 8, 2011.  A pre-hearing conference has been scheduled for July 12, 2011.

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On June 14, ALJ Gildea granted Complainant Ogma, LLC and Respondent ViewSonic Corporation's joint motion to stay all deadlines for ViewSonic in Inv. No. 337-TA-773, Certain Motion-Sensitive Sound Effects Devices and Image Display Devices and Components and Products Containing Same.  The motion was granted based on an assertion by the parties that a settlement had been reached between Ogma and ViewSonic, and that a motion to terminate would be forthcoming.  ALJ Gildea ordered ViewSonic to file a status report of no more than one page on a weekly basis until a motion to terminate is filed.

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Ogma, LLC has filed a new complaint with the International Trade Commission alleging a violation of Section 337 by the importation of motion-sensitive sound effects devices, image display devices, and components and products containing the same.  The proposed respondents are 3M Co.; Bensussen Deutsch & Associates, Inc. d/b/a Power A; Casio America, Inc.; Casio Computer Co., Ltd.; Christie Digital Systems USA, Inc.; Eiki International, Inc.; Intec, Inc.; Mitsubishi Electric Corp.; Mitsubishi Electric & Electronics USA, Inc.; Optoma Corp.; Optoma Technology, Inc.; Performance Designed Products LLC; Planar Systems, Inc.; Supersonic, Inc.; Toshiba Corp.; and Toshiba America Information Systems, Inc.  The patents asserted are U.S. Patent Nos. 6,150,947 and 5,825,427.

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On June 10, 2011 Cypress Semiconductor Corporation filed a complaint with the International Trade Commission, requesting that a Section 337 investigation be instituted with respect to the importation of static random access memories and products containing the same.  The proposed respondents are GSI Technology, Inc.; Alcatel-Lucent; Telefonaktiebolaget LM Ericsson; Motorola Solutions, Inc.; Arrow Electronics, Inc.; and Nu Horizons Electronics, Inc.  The patents at issue are U.S. Patent Nos. 6,534,805; 6,651,134; 7,142,477; and 6,262,937.

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The Commission declined review today of ALJ Bullock's May 17 initial determination finding Respondents Norcross Electric Supply Co., Inc. in default, in Inv. No. 337-TA-739, Certain Ground Fault Circuit Interrupter and Products Containing Same.  No party petitioned for review of the initial determination, which found that Norcross had refused to make or cooperate in discovery.

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Freescale Semiconductor Inc. filed a letter on June 8, 2011, requesting the International Trade Commission to conduct an investigation under section 337 covering Certain Integrated Circuit, Chipsets, and Products Containing Same Including Televisions. The proposed respondents are: Funai Electric Ltd. (Japan), Funai Corporation Inc., MediaTek Inc, and Zoran Corporation.

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On June 9, 2011, the International Trade Commission agreed to institute Investigation Number 337-TA-776, regarding Certain Lighting Control Devices Including Dimmer Switches and Parts Thereof. The complainant Lutron Electronics Co., Inc. claims that respondents Pass & Seymour, Inc., AH Lighting, American Top Electric Corp., Big Deal Electric Corp., Diode LED, Elemental LED, LLC, Wenzhou Huir Electric Science & Technology Co. Ltd., Westgate Mfg., Inc., Zhejiang Lux Electric Co. Ltd., and Zhejiang Yuelong Mechanical & Electrical Co. Ltd. are violating section 337 by importing devices that infringe claims of U.S. Patent Nos. 5,248,919, and 5,637,930. The investigation has been assigned to ALJ Essex.

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Honeywell International Inc. filed a letter on June 6, 2011, requesting the International Trade Commission to conduct an investigation under section 337 covering Certain GPS Navigation Products, Components Thereof and Related Software. The proposed respondents are: Furuno Electric Co. Ltd. (Japan) and Furuno USA Inc.

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OSRAM GmbH filed two letters on June 3, 2011, requesting the International Trade Commission to conduct investigations under section 337 covering Certain Light-Emitting Diodes and Products Containing the Same. The proposed respondents listed in the first letter are: LG Electronics Inc. (South Korea), LG Innotek Co., Ltd. (South Korea), LG Electronics USA, Inc., and LG Innotek USA Inc. The proposed respondents listed in the second letter are: Samsung Electronics Co., Ltd. (Korea), Samsung Electronics America, Inc., Samsung LED Co., Ltd. (Korea), and Samsung LED America, Inc.

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On June 2, 2011, the International Trade Commission agreed to institute an investigation regarding Certain Wireless Communication Devices and Systems, Components Thereof, and Products Containing Same. The complainant Linex Technologies, Inc. claims that respondents HP, Apple, Aruba Networks, Meru Networks, and Ruckus Wireless are violating section 337 by importing devices that infringe claims of U.S. Patent Nos. 6,757,322, and RE42,219. The investigation is number 337-TA-775 and has been assigned to ALJ Bullock.

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Samsung Electronics Co., Ltd. filed a letter on June 1, 2011, requesting the International Trade Commission to conduct an investigation under section 337 covering Certain Liquid Crystal Display Devices and Products Containing Same. The proposed respondents are: AU Optronics Corp. (Taiwan); AU Optronics Corp. America; Acer America Corp.; Acer Inc. (Taiwan); BenQ America Corp.; BenQ Corp. (Taiwan); SANYO Electronic Co., Ltd.; and SANYO North America Corp.

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On May 31, 2011, the International Trade Commission agreed to institute an investigation regarding Certain Electronics Devices Having a Digital Television Receiver and Components Thereof. The complainant Zenith Electronics, LLC claims that three Sony respondents are violating section 337 by importing devices that infringe claims of U.S. Patent Nos. 5,598,220, 5,629,958, and 5,636,251. The investigation is number 337-TA-774 and has been assigned to Chief ALJ Luckern.

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