The U.S. Congress has passed the most expansive piece of patent reform legislation in decades, and enactment awaits only President Obama’s signature, which is expected shortly. The new law includes revisions that affect both patent prosecution strategy and patent litigation strategy.
The major aspects of the legislative changes are presented here.
On July 19, the Commission issued its final determination not to modify the limited exclusion order entered in Inv. No. 337-TA-564, Certain Voltage Regulators, Components Thereof, and Products Containing Same. The original investigation, which began in March 2006, accused certain products of Advanced Analogic Technologies of infringing U.S. Patent Nos. 6,411,531 and 6,580,258. After an investigation, the Commission issued a limited exclusion order against certain of Advanced Analog's products that were found to infringe the '258 patent.
The current enforcement proceeding was begun in October 2008 based on a complaint filed by the original complainant, Linear Technology Corp. On March 18, 2010, the presiding ALJ found that Advanced Analogic's accused products violated the limited exclusion order in place. However, the Commission determined that the products at issue in the enforcement proceeding are already covered by the existing exclusion order, and therefore modification of the order was not necessary.
The Commission denied a motion to stay enforcement of the limited exclusion order and cease and desist orders entered in Inv. No. 337-TA-617, In the Matter of Certain Digital Television Products and Certain Products Containing Same and Methods of Using Same. On June 2, 2009 Vizio and TPV Technology filed a motion to stay enforcement of the limited exclusion order and cease and desist orders entered by the Commission pending an outcome of an appeal to the Federal Circuit. The Commission found that the present motion did not satisfy the four-prong test established by the Commission for staying such orders. Instead the court found that Vizio and TPV Technologies failed to show: (1) that they are likely to prevail on the merits; (2) that irreparable harm would result absent a stay; (3) that a stay would not substantially harm other parties; and (4) that the public interest favors a stay. (PDF)
The Commission largely accepted Enforcement Initial Determination and imposed civil penalties in excess of $25 Million against certain respondents in Inv. No. 337-TA-565, In the Matter of Certain Ink Cartridges and Components Thereof. This investigation was instituted on March 23, 2006 based on a complaint filed by Epson Portland, Inc., Epson America, Inc., and Seiko Epson Corp. (Epson) and alleged violations of section 337 by reason of infringement of certain claims of U.S. Pat. Nos. 5,615,957, 5,622,439, 5,158,377, 5,221,148, 5,156,472, 5,488,401, 6,502,917, 6,550,902, 6,955,422, 7,008,053, and 7,011,397. On October 19, 2008 the ALJ issued a final initial determination finding a violation of section 337 and after review, the Commission made final the ALJ’s final determination finding a violation of section 337. Subsequently, the Commission issued a general exclusion order, a limited exclusion and cease and desist orders.
In 2008 Epson filed three complaints for enforcement against Ninestar Technology Co. Ltd, Ninestar Technology Company, Ltd., Town Sky Inc., (the Ninestar Respondents) Mipo America Ltd., Mipo International Ltd., (the Mipo Respondents) Ribbon Tree USA, Inc., and Apex Distributing Inc. (the Apex Respondents). The ALJ issued an Enforcement Initial Determination recommending that the Commission impose civil penalties. The Commission adopted the Enforcement Initial Determination concerning civil penalties with respect to the Mipo Respondent and imposed a civil penalty in the amount of $9,700,000. The Commission likewise adopted the Enforcement Initial Determination concerning civil penalties with respect to the Apex Respondents and imposed a civil penalty in the amount of $700,000. The commission, however, decided to impose a $11,110,000 penalty against the Ninestar Respondents which is less than the amount recommended in the Enforcement Initial Determination. (PDF)
The Commission set the civil penalties to be levied against Respondents in Inv. No. 337-TA-565, In the Matter of Certain Ink Cartridges and Components Thereof. The Commission adopted the ALJ’s analysis concerning civil penalties with respect to Mipo Respondents ($9,700,000) and Apex Respondents ($700,000). However, the Commission has determined to impose a lesser civil penalty against Ninestar respondents ($11,110,000). The Commission’s order and opinion will be issued at a later date. (PDF)
On July 13, 2009, Chief ALJ Luckern issued the public version of his April 17, 2009, Enforcement Initial Determination (ED) in Inv. No. 337-TA-565, In the Matter of Certain Ink Cartridges and Components Thereof. The enforcement proceeding was initiated on February 8, 2008 when complainants filed two complaints alleging violations of general exclusion orders and cease and desist orders by five respondents. On May 1, 2008, the Commission issued a “Notice of Institution of Formal Enforcement Proceeding.” An evidentiary hearing was conducted in January 2009. ALJ Luckern concluded that all enforcement respondents violated the orders and issued significant civil penalties against those companies. (PDF)
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