ITC Blog: ITC 337 Update

On September 15, 2011, the Commission determined to broadly review most of ALJ Charneski’s findings of violations, no violations, and validity in Inv. No. 337-TA-710, Certain Personal Data and Mobile Communications Devices and Related Software. The complainant is Apple, Inc. of California, et al., and the respondents are HTC Corp. of Taiwan, et al. and Exedia, Inc. of Texas. ALJ Charneski's initial determination found violations of Section 337 as to two of the four patents-in-suit, no violation as to the other two patents, and that all four patents are valid. The Commission determined to review the claim constructions for terms in each of the four patents, as well as the finding of violation for two of the patents, the finding of no violation for two of the patents, the findings on domestic industry for three of the patents, and the findings of validity as to all four patents.

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On January 28, 2011, ALJ Charles E. Bullock issued an order establishing the construction of disputed claim terms of the patents at issue in Inv. No. 337-TA-721, Certain Portable Electronic Devices and Related Software. The complainant is HTC Corp and the respondent is Apple Inc., a/k/a Apple Computer, Inc

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On January 14, 2011, ALJ Gildea released the public version of two orders dated January 4, 2011 denying motions for summary determination filed by respondent in Inv. No. 337-TA-712, Certain Digital Set-Top Boxes and Components Thereof. In the first motion, respondent alleged that a single claim of an asserted patent was invalid under 35 U.S.C. 102 as anticipated by a prior U.S. patent. The complainant and staff attorney opposed the motion. The dispute centered on the scope of the allegedly novel step of "transforming the data processing network information from the network format … to a television format" and which components perform that step. ALJ Gildea, confirming that he would not construe claims prior to the hearing on the merits, found that genuine material issues of disputed fact prevented a finding of summary determination.

In the second motion, respondent sought a summary determination that complainants failed to satisfy the importation requirement of section 337 and failed to tie any importation to alleged acts of infringement. Regarding importation, respondent argued that it contracted with a third-party for the manufacture and importation of the accused product, and thus it does not import the products. Regarding nexus, respondent argued that there can be no nexus because infringement requires end-use, and, according to respond, no evidence of use had been submitted. Complainant and the staff attorney opposed the motion. The ALJ found that genuine issues of material fact remain in dispute such that a trial on the merits is warranted.
 

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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 July 22, the Commission issued notice of its decision to review an initial determination on claim construction issued by Chief ALJ Luckern in Inv. No. 337-TA-703, Certain Mobile Telephones and Wireless Communication Devices Featuring Digital Cameras, and Components Thereof.  The ID to be reviewed was issued on June 22,and the public version became available on July 14.  The Commission has requested briefing on whether there is legal authority for treating claim construction as a matter for summary determination, and whether the claim construction ruling is properly issued as an initial determination.  The notice offers the following hypothetical:

"As used in Rule 210.18(a), the term "issues to be determined in the investigation" can be viewed as limited to claims and affirmative defenses; a "part" of such an issue includes an element (or subpart thereof) of a claim or affirmative defense.  Thus, the following could be a non-exhaustive list of examples of issues or parts thereof that are covered by rule 210.18(a): violation, importation, infringement, domestic industry (technical or economic prong), invalidity on any basis (such as anticipation or obviousness), unenforceability.  Claim construction may be a necessary underpinning to the resolution of certain claims or elements, and may be part of a summary determination that addresses an issue or element.  On its own, however, claim construction might not be viewed as constituting such an issue or element."

The parties have been directed to file initial submissions by August 5, and reply submissions by August 16.
 

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