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.
