ITC Blog: ITC 337 Update

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 November 18, 2011, ALJ Robert K. Rogers, Jr. granted complainant Technology Properties Limited, LLC’s motion for an order to show cause why entry of default judgments should not be found against certain defendants for failure to respond to the Complaint and Notice of Investigation in Certain Digital Photo Frames and Image Display Devices and Components Thereof, Inv. No. 337-TA-807. Specifically, the order to show cause is directed against respondents Win Accord Ltd., Curtis International, Ltd., Aiptek International Inc. (“Aiptek”); WinAccord U.S.A., Inc., and Nextar Inc..

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ALJ Rogers granted a joint motion filed by complainant Technology Properties Limited LLC and respondent Aluratek International Inc. to terminate Inv. No. 337-TA-807, Certain Digital Photo Frames and Image Display Devices and Components Thereof, as to Aluratek based on a settlement agreement. The Commission Investigative Staff filed a response supporting the motion. The investigation remains pending as to other respondents.

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On August 31, 2011, ALJ Rogers issued a confidential initial determination denying temporary relief in Inv. No. 337-TA-777, Certain Muzzle-Loading Firearms and Components Thereof. A public version of the opinion, just recently became available.

Examining the four factors used in analyzing whether temporary relief will be granted, ALJ Rogers denied Complainants’ motion. In assessing likelihood of success on the merits, ALJ Rogers construed certain claim terms and determined that respondents failed to raise substantial questions of invalidity. ALJ Rogers held that but that respondents raised a substantial question concerning infringement regarding claims 1 and 11 and accordingly that complainants failed to meet their burden on these claims. However, ALJ Rogers found that complainants did show a likelihood of success on the merits regarding infringement of claim 10 and on both the technical and economic prongs of the domestic industry requirement. Assessing the other three factors, ALJ Rogers further held that complaints failed to demonstrate the irreparable harm necessary for temporary relief; that the balancing of the hardships did not weigh for or against the granting of temporary relief; and that there was no critical public interest that would be injured if complainants were awarded temporary relief.

Inv. No. 337-TA-777 was filed by Complainants Thompson/Center Arms Company, Inc. and Smith & Wesson, Corp. in June 2011. Concurrently with the complaint, Thompson/Center Arms Company, Inc. and Smith & Wesson, Corp filed a motion for temporary relief directed to respondents Traditional Sporting Goods, Inc. d/b/a/ Traditions Sporting Firearms and Ardesa S.A. d/b/a Ardesa Firearms regarding U.S. Patent No. 7,814,694 (“the ’694 patent”).

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On November 7, 2011, ALJ Rogers set the procedural schedule in Inv. No. 337-TA-809, Certain Devices for Mobile Data Communication. The trial is set for October 15, 2012 with an initial determination due on November 13, 2012. The target date for completion of the investigation is March 12, 2013. Openwave Systems, Inc. is the complainant in this investigation. Apple, Inc. and Research in Motion are the respondents.

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On October 12, 2011, ALJ Rogers set the procedural schedule in Certain Digital Photo Frames and Image Display Devices and Components Thereof, Inv. No. 337-TA-807. The evidentiary hearing is set for September 17, 2012, with the Initial Determination due on October 26, 2012 and a target date set for February 26, 2013. The complainant in this investigation is Technology Partners Limited LLC, and the respondents are Action Electronics Co., Ltd., Aiptek International Inc., Aluratek, Inc., Audiovox Corporation, CEIVA Logic, Inc., Circus World Displays Ltd., Coby Electronics Corporation, Curtis International, Ltd., Digital Spectrum Solutions, Inc., Eastman Kodak Company, Mustek Systems, Inc., Nextar Inc., Pandigital, Royal Consumer Information Products, Inc., Sony Corporation of Japan, Sony Corporation of America, Transcend Information, Inc., ViewSonic Corporation, Win Accord Ltd., and WinAccord U.S.A., Inc..

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ALJ Robert K. Rogers, Jr. issued an order on October 3, 2011 that sets the procedural schedule in Certain Light-Emitting Diodes Products Containing Same, Inv. No. 337-TA-802. The investigation is set to go to hearing on August 20, 2012 with a target date of January 30, 2013.

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On September 19, Apple Inc. filed an appeal with the United States Court of Appeals for the Federal Circuit, appealing the Commission decision in Inv. No. 337-TA-717, Certain Digital Imaging Devices and Related Software. ALJ Rogers found that no violation of section 337 took place on the part of Respondent Eastman Kodak Company with regard to the two patents asserted by Apple, U.S. Patent Nos. 6,031,094 and RE38,911.

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ALJ Rogers issued an order on September 8, 2011 setting the procedural schedule in Certain Light Emitting Diodes and Products Containing Same, Inv. No. 337-TA-798.  The complainants are Samsung LED Co., Ltd. and Samsung LED America, Inc.  The respondents include OSRAM GmbH, OSRAM Opto Semiconductors GmbH, OSRAM Opto Semiconductors, Inc. and OSRAM Sylvania Inc.

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On September 6, 2011, ALJ Robert K. Rogers, Jr. issued an initial determination setting a target date of January 30, 2013 in Certain Light-Emitting Diodes and Products Containing Same, Inv. No. 337-TA-802.

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ALJ Rogers denied Respondent Realtek Semiconductor Corporation's ("Realtek") motion to file high priority objections and motion in limine out of time in Inv. No. 337-TA-749, Certain Liquid Crystal Display Devices, Including Monitors, Televisions, and Modules, and Components Thereof.  In Realtek's motion, Realtek states that its high priority objections and motion in limine were inadvertently delivered to the ITC mailroom rather than to docket services.  Realtek states that upon learning of the errant delivery they filed their high priority objections electronically via EDIS at 5:32pm, fifteen minutes late, and their motion in limine first thing the next morning.  Realtek argued that there was no prejudice to any party because the documents were all timely served via email.  Citing Court Rule 1.8, ALJ Rogers denied Realtek's motion finding that Realtek had not shown good cause for an extension.  ALJ Rogers reminded the parties that while he "understand[s] that there are many deadlines that the parties must meet as they prepare for hearing; [] it is poor practice to wait until the last minute to file documents and then seek relief when the documents are not properly filed or otherwise deficient."

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ALJ Rogers assigned to Inv. No. 337-TA-802, Certain Light Emitting Diodes and Products Containing Same.

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ALJ Rogers granted-in-part Complaints' motion to strike untimely prior art contentions and related portions of expert reports in Investigation Nos. 337-TA-749 & 741, Certain Liquid Crystal Display Devices, Including Monitors, Televisions, and Modules, and Components Thereof ("749 Investigation").  In his order, ALJ Rogers found that the procedural schedule set the deadline for the notice of prior art as April 15, 2011.  The ALJ went on to find that there was no reason to strike references which were identified in Respondents' April 15 notice and for which Respondents had supplemented their responses to contention interrogatories within one month of the notice.  Such supplementation occurred before the close of fact discovery and was reasonable under the circumstances.

The ALJ, however, went on to find that three references were untimely identified.  Claim charts for these references were either provided for the first time with expert reports or provided more than than one month after the filing of the notice of prior art.  As a result, sections of the expert reports regarding those three references were stricken.

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ALJ Rogers issued his Initial Determination in Inv. No. 337-TA-723, Certain Inkjet Ink Cartridges With Printheads and Components Thereof. ALJ Rogers found that Respondents PTC Holdings Limited of Kowloon and Microjet Technology Co., Ltd. infringe the remaining five patents-in-suit. Respondent Asia Pacific Microsystems, Inc. was found not to infringe any of the patents-in-suit. ALJ Rogers found that a domestic industry exists for all patents and all patents had previously been found not invalid on summary determination. Respondent Microjet was found to be in default in a prior Initial Determination. ALJ Rogers recommended a general exclusion order and that bond be set at 100% of the entered value of the imported infringing goods.

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ALJ Rogers denied a Motion for Presumption of Infringement Under 35 U.S.C. § 295 filed by Eli Lilly & Company (“Lilly”) in Inv. No. 337-TA-766, Certain Gemcitabine and Products Containing the Same. ALJ Rogers rejected Respondents Jiangsu Hansoh Pharmaceutical Co., Ltd.; Chemwerth, Inc. and Hospira, Inc.’s argument that § 295 is not applicable in the ITC, but nevertheless denied Lilly’s motion finding that it had not met the requirement that it follow all avenues of discovery likely to uncover Hansoh’s process before a presumption of infringement can be granted. The Court also denied Lilly’s motion to inspect Hansoh’s manufacturing facilities, but granted Lilly’s motion to compel forensic testing of Hansoh’s original batch records.

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ALJ Rogers issued an Order setting a 17 month Target Date of December 31, 2012 in Inv. No. 337-TA-795, Certain Video Analytics Software, Systems, Components Thereof, and Products Containing Same. The Initial Determination is due on August 31, 2012. This investigation was instituted based on a Complaint filed by ObjectVideo, Inc. against Robert Bosch GmbH; Bosch Security Systems, Inc.; Samsung Techwin Co., Ltd.; Samsung Opto-Electronics America, Inc.; Sony Corporation, and Sony Electronics, Inc and involves 108 patent claims.

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On July 25, 2011, ALJ Rogers set the procedural schedule for Investigation No. 337-TA-782, Certain Liquid Crystal Display Devices and Products Containing the Same. The hearing is set to begin May 14, 2012, with a target date of November 6, 2012. The complainant is Samsung Electronics Co., Ltd, and the respondents are Acer America Corp., Acer Inc., BenQ America Corp., BenQ Corp., AU Optronics Corp, AU Optronics Corp. America, Sanyo Electric Co., Ltd., and Sanyo North America Corp.

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ALJ Rogers issued an initial determination granting Complainants Remy International, Inc. and Remy Technologies LLC's unopposed motion to terminate Inv. No. 337-TA-755, Certain Starter Motors and Alternators, as to Respondent Linhai Yongei on the basis of a settlement agreement reached between the parties. 

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The Commission instituted Inv. No. 337-TA-786, Certan Integrated Circuits, Chipsets, and Products Containing the Same, Including Televisions.  The complainant is Freescale Semiconductor, Inc. of Austin, Texas.  Respondents are Funai Electric Co. Ltd., Funai Corporation, Inc., MediaTek Inc.  and Zoran Corporation.  Freescale's complaint alleged violations of 17 U.S.C. section 337 based on the importation into the United States, the sale for importation, and the sale within the United States after importation of certain integrated circuits, chipsets, and products containing the same including televisions by violation of certain claims of U.S. Patent No. 5,467,455.  The Commission also issued notice that this Investigation has been assigned to ALJ Rogers.   

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ALJ Rogers issued the public version of his May 12 Initial Determination on Violation of Section 337 and Recommended Determination on Remedy and Bond in Inv. No. 337-TA-717, Certain Digital Imaging Devices and Related Software. ALJ Rogers found that a violation of Section 337 was not found in connection with U.S. Patent No. 6,031,964 or U.S. Patent No. RE38,911. ALJ Rogers further found that while a domestic industry did not exist as to the '964 patent, a domestic industry did exist as to the '911 patent. The Complainant is Apple Inc.; the Respondent is Eastman Kodak Company.  (PDF)

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On July 8, 2011 ALJ Rogers granted Thompson/Center Arms Company, Inc.’s motion to terminate Inv. No. 337-TA-777, Certain Muzzle-Loading Firearms and Components Thereof, with respect to U.S. Patent No. 7,908,781 and U.S. Patent No. 7,140,138. The investigation remains pending with regard to all other patents at issue. The respondents in this investigation are Ardesa, S.A.; Black Power Products, Inc.; Dikar Sociedad Cooperativa Limitada; Bergara Barrels Europe; Connecticut Valley Arms; and Bergara Barrels North America.

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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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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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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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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 May 25, ALJ Rogers issued the public version of his order denying Complainants Thomson Licensing SAS' motion to compel Respondents to provide Complainants' counsel and technical experts with access to Respondents' manufacturing facilities to conduct inspections. In his denial of the motion to compel, ALJ Rogers cited the undue expense and burden imposed upon Respondents and Complainants' failure to address the potential economic harm to Respondents. The investigation is 337-TA-749/741, Certain Liquid Crystal Display Devices, Including Monitors, Televisions and Modules and Components Thereof.

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ALJ Robert K. Rogers, Jr. issued an order on April 4, 2011 that set the procedural schedule in Inv. No. 337-TA-766, Certain Gemcitabine and Products Containing the Same. The target date of July 23, 2012 is set to conclude the investigation between Complainant Eli Lilly and Company and Respondents Intas Pharmaceuticals, inc., Hospira, Inc., Jiangsu Hansoh Pharmaceutical Co., Ltd., and Chem Werth Inc.

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On March 29, ALJ Rogers issued an initial determination granting Complainant Spansion LLC's motion to terminate in part Inv. No. 337-TA-735, Certain Flash Memory Chips and Products Containing Same, based on its withdrawal of allegations relating to claims 6-10 of U.S. Patent No. 6,900,124.

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On March 22, 2010, ALJ Robert K. Rogers, Jr. denied Respondent Yongkang Boyu Auto Motor Company’s motion to terminate Inv. No. 337-TA-755, Certain Starter Motors and Alternators, based on a proposed consent order Yongkang Boyu filed. Complainant Remy Int’l Inc., et al. and the Staff both opposed the motion because Yongkang Boyu’s proposed consent order was limited to a single product. The ALJ denied the motion to terminate on that basis, holding that the scope of the investigation is broader than the one product Respondent listed in its proposed consent order. ALJ Rogers invited Yongkang Boyu to re-file a proper proposed consent order.

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In a confidential order on February 11, 2010, Judge Rogers made an Initial Determination granting the Respondents’ – Nintendo Co., Ltd and Nintendo of America, Inc. – motion for Summary Determination that the economic prong of the domestic industry requirement was not met by the Complainant Motiva, LLC in Investigation No. 337-TA-743, In the Matter of Certain Video Game Systems and Controllers. Judge Rogers then terminated the investigation.

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On February 10, 2011, ALJ Rogers issued an order setting the procedural schedule and target date in Investigation No. 337-TA-755, In the Matter of Certain Starter Motors and Alternators. The hearing is set to begin November 14, 2011, with an initial determination due by January 18, 2012 and a target date of May 18, 2012.

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On January 25, 2011, the Commission reversed ALJ Robert K. Rogers, Jr.’s final initial determination finding that respondent Oki Data Corp. and Oki Data Americas violated Section 337 by reason of infringing U.S. Pat. No. 5,863,690, in Certain Printing and Imaging Devices and Components Thereof. The complainant was Ricoh Company, Ltd., et al. Specifically, the Commission reversed the ALJ’s finding that Ricoh satisfied the economic prong of the domestic industry requirement as to the ‘690 patent. Furthermore, the Commission reversed the ALJ’s finding that certain claims of the ‘690 patent are not anticipated by prior art.

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On January 24, 2010, ALJ Robert K. Rogers, Jr. found a violation of Section 337 in Certain Mems Devices & Products Containing Same, Inv. No. 337-TA-700, with respect to U.S. Pat. No. 7,364,942, but also found no violation with respect to U.S. Pat. No. 7,220,614. The complainant is Analog Devices, Inc., and the respondents are Knowles Electronics LLC and Mouser Electronics Inc. The ALJ also found that a domestic industry exists with respect to each patent.
 

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ALJ Rogers denied Hewlett-Packard Co. and Hewlett-Packard Development Co., L.P. ("HP")'s motion to compel the production of documents by third party Ruben Pena in In the Matter of Certain Inkjet Ink Cartridges with Printheads and Components Thereof, Inv. No. 337-TA-723.  In his order Rogers found that HP's motion was procedurally deficient since an ALJ cannot compel a third party witness to produce documents in response to a subpoena.  Rather, the Commission Rules require the ALJ certify a request to the commission for judicial enforcement of a subpoena and the Commission then determines if it will seek judicial enforcement of the subpoena.  Since HP's motion did not include a request for judicial enforcement nor include a copy of the subpoena as required, Rogers denied the motion.

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ALJ Rogers granted a joint request by the parties to offer into evidence without a sponsoring witness copies of the asserted patents, their prosecution histories, their assignment records, and the parties' Joint Statement of Proposed Claim Construction in In the Matter of Certain Inkjet Ink Cartridges with Printheads and Components Thereof, Inv. No. 337-TA-723.  Rogers denied the parties joint request to admit deposition designations and counter-designations as premature because the parties had not yet designated deposition testimony.  Rogers further denied the parties joint request to admit discovery responses without a sponsoring witness and without a specific showing that each response is relevant and material.  Rogers denied the request by APM to admit certain other documents because HP objected to their admission and Ground Rule 9.4.13 only allows admission without a sponsoring witness "[i]f all of the parties participating in the hearing stipulate."  Finally, Rogers denied a joint request by the parties to admit any exhibit for which no party submits any objection because the request runs counter to the purpose of Ground Rule 9.4.13.

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On December 23, 2010, ALJ Robert K. Rogers issued an initial determination of infringement of claims 2-6 and 8 of U.S. Pat. No. 7,364,942 by respondents Knowles Electronics LLC.  ALJ Rogers also determined that there was non-infringement of claim 1 of the '942 patent, as well as non-infringement of U.S. Pat. No. 7,220,614. In the Matter of Certain MEMS Devices and Products Containing the Same, Inv. No. 337-TA-700. The complainant is Analog Devices, Inc.

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On December 21, 2010, the commission issued the public version of ALJ Robert K. Rogers’ Nov. 22, 2010 final initial determination of no violation of Section 337 and recommended determination on remedy and bond, in Inv. No. 337-TA-695, Certain Silicon Microphone Packages and Products Containing the Same. ALJ Rogers found that no violation of Section 337 exists with respect to U.S. Pat. Nos. 6,781,231 and 7,242,089, and that no domestic industry exists that practices either patent. The complainant is Knowles Electronics LLC of Illinois, and the respondent is Analog Devices Inc. of Massachusetts.

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On December 16, ALJ Rogers issued an initial determination consolidating Inv. Nos. 337-TA-741 and 337-TA-749, In the Matter of Certain Liquid Crystal Display Devices, Including Monitors, Televisions, Modules, and Components Thereof, due to the significant overlap of the investigations. The parties indicated that the procedural schedule in Inv. No. 337-TA-749 should be adopted to govern both investigations. ALJ Rogers ordered the target date of Inv. No. 337-TA-741 be moved to March 29, 2012, to coincide with the target date for completion of Inv. No. 337-TA-749.

Also on December 16, ALJ Rogers set the procedural schedule for the two consolidated investigations. The deadline for initial determination in 337-TA-741 was moved to November 29, 2011 so as to coincide with the initial determination of 337-TA-749, and March 29, 2012 as the deadline for completion of the consolidated investigation.

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On December 9, 2010, ALJ Rogers issued an Initial Determination granting a partial termination based on Apple, Inc.’s withdrawal of claims 2 and 6 of the ‘964 patent, and claims 16-22, 31-32, and 39 of the ‘911 patent in Inv. No. 337-TA-717, In the Matter of Certain Digital Imaging Devices and Related Software. Judge Rogers granted to withdrawal because there were no extraordinary circumstances and no objections.

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On December 6, 2010, ALJ Rogers issued an Initial Determination terminating TSMC based on a settlement agreement in Inv. No. 337-TA-729, Certain Semiconductor Products Made By Advanced Lithography Techniques and Products Containing Same. The settlement agreement contains a license agreement whereby STC granted TSMC a perpetual, non-exclusive, worldwide, and irrevocable license to a list of U.S., Taiwanese, and Japanese Patents. Judge Roger’s order granting the termination found that the settlement agreement would not be contrary to the public interest.

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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 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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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 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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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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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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On September 30, 2010, ALJ Rogers denied complainant’s motion to amend the complaint and notice of investigation to add new parties in Certain Flash Memory Chips and Products Containing Same, Inv. No. 337-TA-735. Complainant alleged amendment was appropriate in light of new evidence of infringement obtained subsequent to filing its complaint. ALJ Rogers denied the motion, stating that complainant failed to show good cause why it could not have obtained the evidence prior to filing its original complaint.

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On September 24, 2010, in Inv. No. 337-TA-686, Certain Bulk Welding Wire Containers and Components Thereof and Welding Wire, the Commission determined to affirm ALJ Rogers’s determination of no infringement of the asserted claims, but to review and take no position on certain claim construction, priority date, and validity issues. The complainant was Lincoln Electric Company of Ohio and the remaining respondents were The ESAB Group, Inc. of Italy and Sidergas SpA of Italy.

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MIPO Science and Technology Co., Ltd. and MIPO Technology Limited (collectively "MIPO") filed a unilateral motion to terminate the investigation based on a consent order in Inv. No. 337-TA-723, Certain Inkjet Ink Cartridges with Printheads and Components Thereof. In its stipulation and consent order Mipo agrees to not directly or indirectly sell for importation, import into the United States, or sell or offer for sale in the United States after importation inkjet cartridges with printheads that infringe any claim of the Asserted Patents.

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Administrative Law Judge Robert Rogers, Jr. ordered Micro Jet Technology Co., Ltd. to show cause as to why it should not be found in default for failing to respond to the Complaint and Notice of Investigation in Inv. No. 337-TA-723, Certain Ink Jet Cartridges With Printheads and Components Thereof. ALJ Roger's order found that MicroJet is aware of the ongoing investigation as evidenced by the entry of an appearance by counsel for MicroJet and MicroJet's filing of a motion to terminate based on the entry of a consent order (which was denied). However, the ALJ also found that MicroJet has not filed a response to the Complaint and Notice of Investigation, nor responded to discovery requests. MicroJet has until September 17, 2010 to show cause why MicroJet should not be found in default.

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On August 31, 2010, ALJ Rogers issued a lengthy Final Initial Determination in Inv. No. 337-TA-686, Certain Bulk Welding Wire Containers and Components Thereof and Welding Wire, finding that respondents ESAB AB of Sweden and Sidergas SpA of Italy do not infringe complainants Lincoln Electric Company and Lincoln Global, Inc.’s U.S. Pat. No. 6,708,864. In addition, the ALJ found that complainants satisfy the domestic industry requirement with respect to the ‘864 patent.
 

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ALJ Rogers issued an order denying respondent Microjet Technology Co.’s motion for termination and entry of a consent order in Inv. No. 337-TA-723, Certain Inkjet Cartridges with Printheads and Components Thereof.  ALJ Rogers denied the motion because Microjet’s consent order stipulation did not include the statements required by Commission Rule 210.21(c) and failed to comply with multiple procedural requirements for filing motions with the Commission

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ALJ Rogers issued a scheduling order setting the procedural schedule in Inv. No. 337-TA-729, Certain Semiconductor Products Made by Advanced Lithography Techniques and Products Containing Same.  The hearing is set to begin on May 9, 2011 with the initial determination by July 26, 2011 and a target date of November 28, 2011.

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ALJ Rogers has set the target date in Inv. No. 337-TA-729, Certain Semiconductor Products Made By Advanced Lithography Techniques And Products Containing Same.  The initial determination will be due no later than July 26, 2011 and the target date for completion of the investigation is November 28, 2011.

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ALJ Rogers has set the procedural schedule in Inv. No. 337-TA-717, Certain Digital Imaging Devices and Related Software.  The hearing is set to begin January 31, 2011, with an initial determination date of May 18, 2011 and a target date of September 19, 2011.

Procedural Schedule (.PDF)

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ALJ Rogers denied respondent's motion for summary determination of invalidity U.S. Patent No. 6,212,343 (" '343") under § 112, ¶ 2 in Inv. No. 337-TA-690, In the Matter of Certain Printing and Imaging Devices and Components Thereof.  The respondents and staff argued that the claim limitation describing a blade enabled to be "bent in a direction orthogonal to a longitudinal direction of [a roller]" was indefinite because, inter alia, there are "an infinite number of possible orthogonal directions." In its order the ALJ held that the claim was not indefinite.  The court reasoned that in the context of the claim a "longitudinal direction" of the roller was easily identifiable and, thus, a direction orthogonal to a longitudinal direction" was definite.  (PDF)

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ALJ Rodgers granted Oki Data’s motion to preclude Ricoh from relying on earlier conception and reduction to practice dates where Ricoh improperly supplemented its interrogatory responses. The earlier conception and reduction to practice dates were not asserted to be newly acquired information. As a result, the supplemental answers were not proper under Commission Rule 210.274(c)(1) because the purpose of the supplement or correction was not to include “information thereafter acquired.”

ALJ Rodgers also held that Oki Data’s attempt to seek an order requiring Ricoh’s employees to travel from Japan to the United States for deposition improper. The normal practice in the ITC investigation is for the deposition to occur at the place where the deponent works or resides absent a showing of hardship or unusual experience. 

ALJ Rodgers further found Oki Data’s deposition requests untimely even though served twenty-two days prior to the close of fact discovery. Oki Data should have known that the witnesses were located in Japan and should have initiated the discovery in sufficient time to permit such depositions in accordance with the applicable rules for depositions in Japan.  (PDF)

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Respondent Atlantic China Welding Consumables, Inc. (“Atlantic”) moved for sanctions against Complainants Lincoln Electric Company and Lincoln Global, Inc (“Lincoln”) for failure to comply with Commission Rule 210.4(c). Atlantic based its motion on Lincoln’s alleged failure to conduct a reasonable pre-filing investigation and continued maintenance of the investigation against Atlantic. It was undisputed that the accused “Atlantic product” was not made by, or manufactured for, Atlantic. 

ALJ Rodgers found that Lincoln conducted an objectively reasonable pre-filing investigation by ordering the accused product and relying on a trusted vendor’s representation that the product was an Atlantic product. As received, the product did not have a label and the Material Safety Data Sheet indicated that the manufacturer/supplier was a third party known to manufacture for Atlantic. Atlantic argued that Lincoln should have known that the product was not made by Atlantic because of the retainer ring design of the accused product. However, nothing in the record indicated that Lincoln knew or should have know of the differences in the retainer ring structures offered by Atlantic and others. Lincoln’s failure to search the ISO certification number on the product was not unreasonable given the testimony that ISO certification is not commonly used in the industry to identify product origin.

ALJ Rodger’s also found Lincoln’s activities after institution of the investigation were objectively reasonable. Atlantic’s counsel informally represented that Atlantic did not make the accused products, but never provided a signed declaration. Lincoln properly sought discovery from the alleged manufacturer identified by Atlantic. After receiving the needed discovery, Lincoln timely moved to terminate the investigation against Atlantic. (PDF)

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On March 29, 2010 ALJ Rogers issued his initial determination in Inv. No. 337-TA-690, In the Matter of Certain Printing and Imaging Devices and Components Thereof, granting complainants Ricoh Company, Ltd., Ricoh Americas Corporation, and Ricoh Electronics, Inc.’s motion to terminate the investigation in part with respect to certain asserted claims of U.S. Patent Nos. 6,029,048; 5,764,866; 5,863,690; and 6,388,771. Respondents Oki Data Corporation and Oki Data Americas do not oppose the motion.

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On March 8, 2010 ALJ Rogers issued an order setting the procedural schedule for Inv. No. 337-TA-705, In the Matter of Certain Notebook Computer Products and Components Thereof. ALJ Rogers set February 23 ,2011 as the due date for an Initial Determination and June 23, 2011 as the target date for completion of the investigation.  (PDF)

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On March 2, 2010 the Commission issued its determination not to review the initial determination of ALJ Rogers’s initial determination in consolidated Inv. Nos. 337-TA-667 and 337-TA-673, In the Matter of Certain Electronic Devices Including Handheld Wireless Communication Devices and granted a motion to terminate the consolidated investigation in their entirety on the basis of settlement agreements. Saxon Innovations LLC filed the complaint on March 31, 2009 against Palm, Inc., Panasonic Corporation, and Samsung Electronics Co. Ltd. (PDF)

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On March 2, 2010, ALJ Rogers issued an order in Inv. No. 337-705, In the Matter of Certain Notebook Computer Products and Components Thereof, setting February 23, 2011 as the date for Initial Determination on the alleged violation of section 337 and June 23, 2011 as the target date for completion of the investigation. The complainant is Toshiba Corporation; respondents are Wistron Corporation; Wistron InfoComm Corporation and Wistron InfoComm Technology. (PDF)

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ALJ Rogers issued the public version of his October 14 ,2009 initial determination that a violation of section 337 occurred in Inv. No. 337-TA-665, In the Matter of Certain Semiconductor Integrated Circuits and Products Containing Same.   ALJ Rogers found that a violation of section 337 occurred in connection with U.S. Patent Nos. 5,646,434; 5,213,670; 5,851,899 and 6,495,918, belonging to complainant Qimonda AG. ALJ Rogers further found that a domestic industry did not exist that practiced any of the patents listed above. (PDF)

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ALJ Rogers issued an order setting a procedural schedule in Inv. No. 337-TA-700, In the Matter of Certain Surface Mount MEMS Microphones and Products Containing the Same. The target date for completion of the investigation was set for May 4, 2011.  (PDF)

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ALJ Roghers issued an order setting the deadline for Initial Determination on alleged violation of section 337 as January 4,2011, and the target date for completion of this investigation is May 4,2011, in 337-TA-700, In the Matter of Certain Surface Mount MEMS Microphones and Products Containing the Same.  (PDF)

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ALJ Rogers granted Complainants' Motion for Partial Termination of the Investigation with respect to U.S. Patent No. 7,309,038 in Inv. No. 337-TA-686, In the Matter of Certain Bulk Welding Wire Containers and Components Thereof and Welding Wire.  (PDF)

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ALJ Rogers granted Complainants' Motion for Partial Termination of the Investigation with respect to Atlantic China Welding Consumables, Inc. (“Atlantic”) and denied Atlantic’s request for sanctions in Inv. No. 337-TA-686, In the Matter of Certain Bulk Welding Wire Containers and Components Thereof and Welding Wire. Atlantic had not opposed the motion, but filed a response to note two allegedly false statements made in Lincoln's motion. First, Atlantic claimed that Lincoln's statement that there are no other agreements between Lincoln and Atlantic is false, arguing that there exists at least an implied agreement between Lincoln and Atlantic that Lincoln will dismiss two district court cases that Lincoln filed against Atlantic. Second, Atlantic claimed that Lincoln's assertion that the motion was filed before any depositions have taken place is false, noting that at least two third-party depositions took place prior to the filing of Lincoln's motion.  (PDF)

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ALJ Rogers denied Complainants’ motion to preclude Respondents from relying on prior art in Inv. No. 337-TA-686, In the Matter of Certain Bulk Welding Wire Containers and Components Thereof and Welding Wire.  (PDF)

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ALJ Rogers issued Ground Rules in Inv. No. 337-TA-700, In the Matter of Certain Surface Mount MEMS Microphones and Products Containing the Same.  (PDF)

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On November 20, 2009, ALJ Rogers granted a joint motion to stay the procedural schedule as to respondent Hyundai In the Matter of Certain Bulk Welding Wire Containers and Components Thereof and Welding Wire, Inv. No. 337-TA-686. Both parties had moved to terminate the investigation as to Hyundai on the basis of a settlement agreement.  (PDF)

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On November 17, 2009 ALJ Rogers denied respondent Sidergas SpA’s motion for summary determination that a claim of one of complainant’s patents is invalid as anticipated in Inv. No. 337-TA-686, In the Matter of Certain Bulk Welding Wire Containers and Components Thereof and Welding Wire. ALJ Rogers found that granting summary judgment determination based on anticipation would be improper, given Sidergas’s failure to offer any proposed claim constructions. (PDF)

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ALJ Rogers issued the public version of his October 14, 2009 order denying complainant Saxon Innovations, LLC’s motion for summary determination of no enforceability due to inequitable conduct and no invalidity in Inv. No. 337-TA-673, In the Matter of Certain Electronic Devices, Including Handheld, Wireless Communication Devices. ALJ Rogers’s order also denied respondent Samsung’s motion for summary determination of unenforceability due to inequitable conduct. ALJ Rogers ruled that a genuine issue of disputed material fact regarding an intent to deceive precluded a summary determination of unenforceability of U.S. Patent No. 5,608,873 due to inequitable conduct. (PDF)

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On November 16, 2009, ALJ Rogers denied respondent Sidergas SpA’s motion for summary determination of invalidity of claims 3, 4, 6, 12, and 13 of U.S. Patent No. 6,708,864, held by complainant Lincoln Electric Company and Lincoln Global, Inc. ALJ Rogers noted that because the parties failed to identify the claim terms in dispute or offer any proposed claim constructions, granting summary determination based on anticipation would be improper In the Matter of Certain Bulk Welding Wire Containers and Components Thereof and Welding Wire, Inv. No. 337-TA-686. (PDF)

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On November 12, 2009, ALJ Rogers issued an initial determination granting complainants The Lincoln Electric Company and Lincoln Global, Inc.’s motion to terminate the investigation in part by withdrawing all allegations relating to U.S. Patent Nos. 6,648,141; 6,913,145; 7,398,881 and 7,410,111. Respondents Hyundai Welding Co., Ltd., Kiswel Co. Ltd., The ESAB Group, Inc., Sidergas SpA, and Atlantic China Welding Consumables, Inc. did not oppose the motion. ALJ Rogers denied respondent Sidergas’s motion for summary determination of invalidity with regard to complainants’ four patents, due to their removal from Inv. No. 337-TA-686, In the Matter of Certain Bulk Welding Wire Containers and Components Thereof and Welding Wire. (PDF)

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On October 13, 2009, ALJ Rogers granted-in-part and denied-in-part respondents’ motion for leave to file a second amended response to complainant’s verified amended complaint. The motion was granted-in-part because the amended response provided additional specificity to the affirmative defense of inequitable conduct, and that defense was previously plead, but not with the required level of particularity. The motion was denied-in-part with respect to new allegations regarding a specific reference that only appeared in the amended response and not in the original response. Inv. Nos. 337-TA-673, 667, In the Matter of Certain Electronic Devices, Including Handheld Wireless Communications Devices, U.S. Pat. Nos. 5,235,635, 5,530,597, 5,608,873.  (PDF)

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On October 1, 2009, ALJ Rogers granted a joint motion to terminate based on a settlement between the parties in Inv. Nos. 337-TA-673 and 337-TA-667, In the Matter of Certain Electronic Devices, Including Handheld Wireless Communications Devices, U.S. Pat. Nos. 5,235,635, 5,530,597, 5,608,873. 

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On September 18, 2009, ALJ Rogers issued notices setting the target date and procedural schedule in Inv. No. 337-TA-686, In the Matter of Certain Bulk Welding Wire Containers and Components Thereof and Welding Wire. ALJ Rogers set the date for the Final Initial Determination on alleged violation of section 337 for August 9, 2010, and the target date for completion of the investigation for December 7, 2010. (PDF)

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On September 10, 2009, ALJ Rogers granted a joint motion by complainant Lutron Electronics Co., Inc. and respondent Neptun Lights, Inc. to terminate the investigation based upon a consent order in Inv. No. 337-TA-681, In the Matter of Certain Lighting Control Devices Including Dimmer Switches and Parts Thereof.  (PDF)

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On September 3, 2009, ALJ Rogers issued an Initial Determination granting complainant Saxon Innovations, LLC’s unopposed motion for partial termination of the investigation as to all allegations relating to claim 11 of U.S. Patent No. 5,530,597 in Inv. Nos. 337-TA-673 and 337-TA-667, In the Matter of Certain Electronic Devices, Including Handheld Wireless Communications Devices. (PDF)

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ALJ Rogers granted-in-part and denied in part non-party Freescale Semiconductor, Inc.’s motion to quash or limit a subpoena duces tecum and ad testificandum in Inv. No. 337-TA-673, In the Matter of Certain Electronic Devices, Including Handheld, Wireless Communication Devices. ALJ Rogers found that Samsung (respondent) had demonstrated a need for information concerning the structure and operation of licensed Motorola products since the operation of such products will determine whether or not the licensed Motorola products practice the patent in suit (U.S. Pat. No. 5,608,873). The ALJ, thus refused to quash the subpoena, but did limit the subpoena to this one issue. (PDF)

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ALJ Roberts granted Complainant Phillips Lumileds Lighting Company, LLC’s motion to withdraw its complaint and terminate the investigation in its entirety in Inv. No. 337-TA-556, In the Matter of Certain High-Brightness Light-Emitting Diodes and Products Containing Same. Commission Rule 210.21(a)(1) permits a motion for an order terminating an investigation provided the motion contain a statement disclosing any agreements between the parties concerning the subject matter of the investigation or stating that no such agreement exists. Phillips’ motion to terminate the investigation states that no such agreement exists in this case. On May 24, 2009 the Federal Circuit vacated the Commissions limited exclusion order and remanded this case to allow respondent to challenge the validity of Phillips’ asserted patent. The asserted patent, however, will expire on December 18, 2009 and Phillips would not be able to complete the entire remand proceeding prior to the patent’s expiration. ALJ Roberts, finding no extraordinary circumstances preventing the termination of the remanded investigation and finding that such a termination to be in the public interest, granted Phillips’ motion. (PDF)

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On August 10, 2009, ALJ Rogers granted respondents’ motion for a limited exception to the protective order to provide an ALJ’s order to a district court in a parallel proceeding in Inv. No. 337-TA-673, In the Matter of Certain Electronic Devices, including Handheld Wireless Communications Devices. The order to be provided to the district court addressed respondents’ motion concerning judicial enforcement of a subpoena served on a non-party law firm. There was a substantively identical motion pending before the district court.  (PDF)

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On August 5, 2009, ALJ Rogers issued the public version of his July 14, 2009, Order denying respondent’s motion for a protective order in Inv. Nos. 337-TA-667 and 673, In the Matter of Certain Electronic Devices, Including Handheld Wireless Communications Devices. In its motion, respondent Palm, Inc. sought to preclude Complainant Saxon Innovations, LLC from accusing the Palm Pre phone of infringement on the basis that Saxon failed to include the device in relevant interrogatory responses by the applicable deadline. ALJ Rogers concluded that Palm was on notice before the applicable deadline of the fact that Saxon was accusing Palm of infringement and thus failed to show good cause for issuance of a protective order.  (PDF)

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