ITC Blog: ITC 337 Update

On December 6, Chief ALJ Bullock terminated Inv. No. 337-TA-738, Certain Components For Installation of Marine Autopilots With GPS or IMU, on the basis of a settlement agreement between complainant and the remaining respondents, Navico AS, Navico UK, Ltd., and Navico Inc. The Chief ALJ denied as moot the parties' request that the full terms of the settlement agreement not be disclosed to other parties in the investigation, based on the fact that no additional respondents remained in the investigation.

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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 E. James Gildea terminated Certain Motion-Sensitive Sound Effects Devices and Image Display Devices and Components and Products Containing the Same, Inv. No. 337-TA-773, as to Kyocera Communications, Inc. in response to a joint motion to terminate filed jointly by Complainant Ogma, LLC and Kyocera.  This motion was premised on a settlement agreement reached between the two parties.

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On November 17, 2011, ALJ Gildea issued an initial determination granting a joint motion filed by complainant Ogma, LLC and respondent 3M Company to terminate Inv. No. 337-TA-773, Certain Motion-Sensitive Sound Effects Devices and Image Display Devices and Components and Products Containing Same, as to 3M based on a settlement agreement. The Commission Investigative Staff filed a response supporting the motion. The investigation remains pending as to the other respondents.

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The Commission has declined to enter a consent order, and instead terminated on the basis of a settlement agreement, Inv. No. 337-TA-568, Certain Products and Pharmaceutical Compositions Containing Recombinant Human Erythropoetin. On May 12, 2006 complainant Amgen Inc. filed a complaint against respondents Roche Holding Ltd.; Roche Diagnostics GmbH; and Hoffman La Roche Inc. (collectively “Roche”), which resulted in the institution of the investigation. After separate remands by the Federal Circuit and a parallel civil action involving many of the same patents, on December 18, 2009, the private parties executed a settlement agreement. The parties also agreed to a consent order in the parallel district court action.

On December 22, 2009, Amgen moved to terminate the investigation by entry of an exclusion order based on preclusion caused by the district court judgment. On March 11, 2011, the Commission issued an order to show cause in which it noted that Amgen’s request of an exclusion order appeared to contravene the Commission’s longstanding policy of not reaching an issue of violation in terminating investigations based on settlement agreements. Amgen and Roche subsequently filed a joint response seeking a consent order, rather than an exclusion order.

In its current order, the Commission elected to terminate the investigation based on settlement agreement and declined to exercise its discretion to issue a consent order. The Commission cited several reasons for its opinion. First, the consent order was not pursued by the parties at the time of settlement. Second, it noted the Commission appears to lack jurisdiction to enforce the settlement agreement between the parties, and would therefore likely lack jurisdiction to enforce a consent order to the extent the settlement agreement was involved. Finally, the Commission noted that the proposed consent order contained language typical of cease and desist orders that is not routinely seen in consent orders.
 

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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 October 4, 2011, ALJ E. James Gildea granted the parties joint motion to terminate Inv. No. 337-TA-801, Certain Products Containing Interactive Program Guide and Parental Controls Technology, in its entirety. The joint motion was premised on a settlement agreement reached between Complainants Rovi Corporation, Rovi Guides, Inc., United Video Properties, Inc., and Gemstar Development Corporation and Respondents Sharp Corporation, Sharp Electronics Corporation, and Sharp Electronic Manufacturing Company of America Inc.

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On September 21, the Commission issued notice of its determination not to review an initial determination terminating Inv. No. 337-TA-773, Certain Motion-Sensitive Sound Effect Devices and Image Display Devices and Components and Products Containing Same, as to Respondents Optoma Corporation and Optoma Technology, Inc. based upon a settlement agreement. The complainant is Ogma, LLC.

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On September 19, the Commission issued notice of its initial determination not to review an August 25, 2011 initial determination granting a joint motion by Complainant and Respondents to terminate in its entirety Inv. No. 337-TA-765, Certain Display Devices Including Digital Televisions and Monitors II. The complainant was Sony Corp. of Japan, and the respondents were LG Electronics, Inc. and LG Electronics USA.

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On September 19, the Commission issued notice of its initial determination not to review an August 31, 2011 initial determination granting a motion by Complainant Vizio, Inc. to terminate Inv. No. 337-TA-789, Certain Digital Televisions and Components Thereof, as to Respondent E & S International Enterprises, Inc. on the basis of a settlement agreement.

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On September 15, 2011, ALJ E. James Gildea issued an initial determination terminating Inv. No. 337-TA-773, Certain Motion-Sensitive Sound Effects Devices and Components and Products Containing Same, as to respondent Intec, Inc. due to a settlement agreement with complainant Ogma, LLC. There are eighteen remaining respondents in the Investigation.

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On September 6, 2011, ALJ E. James Gildea issued an initial determination that granted a joint motion to terminate Inv. No. 337-TA-773, Certain Motion-Sensitive Sound Effects Devices and Image Display Devices and Components and Products Containing the Same, as to Respondents Optoma Corporation and Optoma Technology, Inc. (collectively “Optoma”). The joint motion to terminate was based upon a settlement agreement between Complainant Ogma, LLC and the Optoma respondents. The investigation continues against the other named respondents.

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On September 2, 2011, ALJ E. James Gildea issued an Initial Determination that granted a joint motion to terminate the Inv. No. 337-TA-773, Certain Motion-Sensitive Sound Effects Devices and Image Display Devices and Components and Products Containing the Same, as to Respondent Bensussen Deutsch & Associates, Inc. (“BDA”). The joint motion was made in light of a settlement agreement made between Complainant Ogma, LLC and BDA. The Investigation continues against the following Respondents: 3M Company; Activision Blizzard, Inc.; Canon, Inc. and Canon USA, Inc.; Casio America, Inc. and Casio Computer Co., Ltd.; Christie Digital Systems USA, Inc.; Intec, Inc.; Jakks Pacific, Inc.; Kyocera Communications, Inc.; Lego A/S and Lego Systems, Inc.; Lenovo (United States), Inc., Lenovo Group Ltd., and Lenovo (Singapore) Pte. Ltd.; Mitsubishi Electric Corporation and Mitsubishi Electric & Electronics U.S.A., Inc.; Nintendo Co., Ltd. and Nintendo of America Inc.; Nyko Technologies, Inc.; Optoma Corporation and Optoma Technology, Inc., Performance Designed Productions LLC; Planar Systems, Inc.; Toshiba Corporation and Toshiba America Information Systems, Inc.; and Supersonic, Inc.

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ALJ Gildea denied a joint motion to terminate the investigation as to Respondent Bensussen Deutsch & Associates, Inc. on the basis of 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.  ALJ Gildea ruled that the parties failed to satisfy Rule 210.21(b)(1) by failing to attach a public version of the settlement agreement.  Due to this failure, ALJ Gildea denied, without prejudice, the parties' joint motion.

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 Vizio filed a motion to terminate E&S International Enterprises (“E&S”) in Investigation No. 337-TA-789, Certain Digital Televisions and Components Thereof (“789 Investigation”).  Vizio’s motion, indicates that E&S has agreed to a license agreement with Vizio.  

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On August 2, 2011, ALJ Gildea granted an unopposed motion filed by Complainants Duggal Dimensions LLC, Duggal Energy Solutions LLC, and Duggal Visual Solutions, Inc. (collectively “Duggal”) to terminate Inv. No. 337-TA-736, Certain Wind and Solar Powered Light Posts and Street Lamps, based on withdrawal of the Complaint. Duggal has entered into a settlement agreement with the other private parties: Respondents Gus Power Incorporated, Efstonscience Inc., King Luminair, Inc., and The Stresscrete Group.

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On July 18, 2011, ALJ Gildea granted a joint motion filed by complainant Ogma, LLC and respondents VTech Holdings, Ltd. and VTech Electronics North America, LLC to terminate the Investigation as to the VTech respondents by reason of a settlement agreement in Certain Motion-Sensitive Sound Effects Devices and Image Display Devices and Components and Products Containing Same, 337-TA-773. The Investigation remains pending against respondents Activision Blizzard, Inc., Canon, Inc., Canon USA, Inc., Jakks Pacific, Inc., Kyocera Communications, Inc., LEGO A/S dba LEGO Group, LEGO Systems, Inc., Lenovo (United States), Inc., Lenovo Group Ltd., Lenovo (Singapore) Pte. Ltd., Mad Catz, Inc., Nintendo Co., Ltd., Nintendo of America, Inc., Nyko Technologies, Inc., Sony Ericsson Mobile Communications (USA), Inc., Sony Ericsson Mobile Communications AB, ViewSonic Corp., Ltd., WowWee Group Ltd., and WowWee USA, Inc.

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The Commission granted a joint motion filed by complainants Nokia Corporation and Nokia Inc. (collectively “Nokia”) and respondent Apple Inc. (“Apple”) to terminate Inv. No. 337-TA-701, Certain Electronic Devices, Including Mobile Phones, Portable Music Players, and Computers, on the basis of a settlement agreement. On March 25, 2011 the ALJ issued a final ID finding no violation of section 337 by Apple. On May 26, 2011 the Commission determined to review the ID in part. Thereafter, Nokia and Apple filed their joint motion to terminate, which was supported by the Commission investigative attorney. The Commission’s decision terminates this investigation in its entirety.

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On July 7, 2011, the Commission granted a consent motion filed by complainant, Samsung Electronics Co. (“Samsung”) in Inv. No. 337-TA-685, Certain Flash Memory and Products Containing Same, to terminate the investigation in its entirety on the basis of settlement. The only respondents remaining in the investigation were Spansion LLC, Spansion Inc. (collectively “Spansion”), and D-Link. The ALJ had previously issued a final ID finding a violation of Section 337 by respondents. Respondents and Commission Staff separately requested review of the ALJ’s determination and the Commission issued notice of its determination to review on May 5, 2011.

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On July 6, 2011, ALJ Gildea granted a joint motion filed by complainant Ogma, LLC (“Ogma”) and Respondent Vivitek Corporation (“Vivitek”) to terminate Inv. No. 337-TA-773, Certain Motion-Sensitive Sound Effects Devices and Image Display Devices and Components And Products Containing Same as to Vivitek by reason of indirect license agreements with non-party RPX Corporation. The Commission Investigative Staff supported the parties’ motion. The Investigation remains pending against all other respondents.

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On July 5, 2011, ALJ Charneski granted a joint motion filed by complainants Apple, Inc. and NeXT Software, Inc. (“Apple”) and respondents Nokia Corporation and Nokia Inc. (“Nokia”) to terminate Inv. No. 337-TA-710, Certain Personal Data And Mobile Communications Devices and Related Software, as to Nokia based on a Settlement Agreement and License Agreement. The Commission Investigative Staff supported the motion.

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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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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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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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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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ALJ Paul J. Luckern issued an Initial Determination on April 4, 2011 terminating Respondents Nokia Corp., Nokia, Inc., Research In Motion, Ltd. and Research In Motion Corp. from Inv. No. 337-TA-726, Certain Electronic Imaging Devices. This dismissal resulted from patent licensing and settlement agreements between the dismissed Respondents and Complainant FlashPoint Technology, Inc. The remaining Respondents in this investigation include HTC Corporation, HTC America, Inc., LG Electronics, LG Electronics U.S.A., Inc., and LG Electronics MobileComm U.S.A., Inc.

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On January 28, 2011, ALJ Carl C. Charneski issued orders to terminate both the modification proceeding and enforcement proceeding against respondents SiRF Technology, Inc., CSR plc, Pharos Science and Applications Inc., MiTAC International Corporation, and Mio Technology Limited in Inv. No. 337-TA-602, Certain GPS Devices and Products Containing the Same. The initial determination to terminate was ordered pursuant to a settlement agreement between complainants Broadcom Corporation and Global Locate, Inc. and the respondents.

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On January 28, 2011, ALJ E. James Gildea issued an initial determination to terminate in its entirety Inv. No. 337-TA-742, Certain Digital Televisions and Components Thereof. The termination was a result of a settlement agreement between complainant LG Electronics, Inc. and respondents Vizio, Inc., AmTran Technology Co., Ltd. , and AmTran Logistics, Inc.

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On January 26, 2011, ALJ Charles E. Bullock granted complainant Vizio, Inc.’s and respondent LG Electronics, Inc. and LG Electronics, USA’s joint motion to terminate Inv. No. 337-TA-733, Certain Flat Panel Digital Televisions and Components Thereof, based on a settlement and license agreement. 

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On January 24, 2011, ALJ Carl C. Charneski granted complainant eInstruction Corporation’s motion to terminate Inv. No. 337-TA-728, Collaborative System Products and Components (II), based on a settlement agreement with respondents Promethean, Inc., Promethean Technology Shenzhen, Ltd., and Promethean Limited.

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Complainant eInstruction Corp. filed a motion to terminate the Investigation based on a settlement agreement between eInstruction and Promethean Inc., Promethean Technology Shenzhen Ltd., and Promethean Ltd. (collectively "Promethean") in In the Matter of Certain Collaborative System Products and Components Thereof (II), Inv. No. 337-TA-728.  The specific terms of the settlement agreement were redacted from the public version of eInstruction's motion.

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ALJ Essex issued an initial determination granting BTG International ("BTG") and Samsung Electronics Co., Ltd, Samsung Electronics America, Inc., Samsung Semiconductor, Inc., and Samsung Telecommunications America, LLC (collectively "Samsung") joint motion to terminate the investigation based on a settlement agreement in In the Matter of Certain MLC Flash Memory Devices and Products Containing Same, Inv. No. 337-TA-683.  The specific terms of the settlement agreement were redacted from the public version of the initial determination.

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ALJ Essex issued an initial determination granting Chimei Innolux Corp., Chi Mei Optoelectronics USA, Innolux Corp. (collectively "CMI") and Sony Corp., Sony Corp. America, Sony Electronics, Inc., and Sony Computer Entertainment America, LLC (collectively "Sony") joint motion to terminate the investigation based on a settlement agreement in In the Matter of Certain Liquid Crystal Display Devices and Products Interoperable with the Same, Inv. No. 337-TA-737.  The specific terms of the settlement agreement were redacted from the public version of the initial determination.

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On December 23, 2010, ALJ Carl C. Charneski terminated Inv. No. 337-TA-740, Certain Toner Cartridges and Components Thereof, as to respondent Print-Rite Holdings Ltd. based on a settlement agreement with complainant Lexmark International, Inc. 

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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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