The new rules go into effect for 337 investigations instituted 30 days after publication in the Federal Register. Full text of the amendments is available here.
On April 26, 2018, the Federal Register published USITC's updated rules governing Section 337 investigations. The final regulations contain 11 changes from the proposals. Among the most notable changes, the revised rules: (1) require that the notice of investigation specify in plain language the scope of the accused products or category of accused products that will be subject of the investigation in order to avoid disputes between the parties concerning the scope of the investigation; (2) formally establish 100-day proceeding to provide for expedited discovery, fact-finding, and determinations in an investigation if the commission, at institution, identifies a potentially investigation-dispositive issue; (3) clarify that the Commission may institute multiple investigations based on a single complaint where necessary for efficient adjudication; (4) allow the ALJ to sever an investigation into two or more investigations at any time prior to or upon thirty (30) days from institution, based upon either a motion by any party or upon the ALJ's own judgment that severance is necessary for efficient adjudication; and (5) bring the Commission's subpoena practice into closer conformity with FRCP.
The new rules go into effect for 337 investigations instituted 30 days after publication in the Federal Register. Full text of the amendments is available here.
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ALJ McNamara recently granted Respondent ARRIS' motion to compel deposition of Complainant Sony's corporate witnesses in the U.S. Certain Digital Cable and Satellite Products, Inv. No. 337-TA-1049, Order No. 10. ALJ acknowledged the problem of having the depositions in Japan, particularly the law prohibiting the taking of testimony via telephone that prevented Staff's participation. Sony requested clarification or in the alternative, for interlocutory review of the order. Sony offered other locations for deposition including Hong Kong, Guam, and Hawaii. ARRIS requested the location to be Washington, DC or any reasonably accessible East Coast location. In granting ARRIS' request, ALJ explained that Sony's position is inconsistent with prior argument that Order 10 marked a "significant departure from well-established Commission practice." Order No. 14. ALJ McNamara's order limiting the deposition location to Washington, DC or other East Coast location for Japanese witnesses may impact how overseas depositions are handled in ITC matters.
The USITC issued a general exclusion order against certain woven textile fabrics and products that are falsely advertised by misrepresenting the thread count. Certain Woven Textile Fabrics and Products Containing Same, Inv. No. 337-TA-976 (Mar. 20, 2017). AAVN filed a complaint alleging Section 337 violation in the importation into the U.S. and the sale of certain woven textile fabrics and products based upon false advertising claims. Fourteen of the fifteen respondents settled and ALJ Essex granted AAVN’s motion of summary determination against the last remaining respondent Pradip Overseas Ltd., where Pradip’s “800 Thread Count” bed sheets were measured by AAVN at 252 threads. In affirming the ALJ’s grant of a GEO, the Commission agreed the GEO is appropriate given the pattern of widespread violation and the difficulty in identifying the source of infringing products. The decision highlights Section 337’s broad reach into unfair acts in importation beyond the typical patent or trade secret investigations.
On Nov. 11, 2015, the Federal Circuit in a 2-1 decision held that that the USITC does not have jurisdiction under Section 337 to exclude electronic transmissions of digital data as they are not considered as "articles." ClearCorrect scans physical models of patient's teeth, creates a digital recreation of initial tooth arrangement, and transmits the digital recreation to its subsidiary outside. The foreign subsidiary creates digital data models of intermediate tooth positions and transmits it back to ClearCorrect. Align Technology alleged that ClearCorrect violated Section 337 by practicing its claimed methods abroad and importing the electronic data set to the U.S. The commission granted an exclusion order finding that ClearCorrect's data transmissions were "articles." In reversing the Commission's ruling, the Federal Circuit concluded that ITC lacked jurisdiction to exclude importation of electronic transmissions as the statutory language and congressional intent make clear that the jurisdiction is limited to "articles" that are material things and do not extend to digital transmissions. Full text of the opinion is available here.
On Feb. 27, 2015, ALJ Lord issued a notice regarding Initial Determination on violation of Section 337 in Certain Television Sets, Television Receivers, Television Tuners and Components Thereof (Inv. No. 337-TA-910) finding no violation with respect to asserted patents. In this case, Complainant Cresta Technology filed a complaint alleging that respondents violated Section 337 by importing, selling for importation, and selling within the U.S. after importation of certain television sets, television receivers, television tuners and components thereof by allegedly infringing certain claims of USP7,075,585 and USP7,265,792. ALJ Lord found that there was no violation of Section 337 with respect to the asserted patents and issued a notice regarding initial determination.
On February 5, 2015, the Federal Circuit sitting en banc heard oral arguments in Suprema, Inc. v. Int’l Trade Comm’n, Fed. Cir., No. 2012‐1170, regarding the ability of the USITC to issue exclusion orders under Section 337 based on a theory of induced patent infringement of method claims under 35 U.S.C. §271(b). In this case, complainant Cross Match Technologies filed a complaint alleging that respondent Suprema's importation into the U.S. and the subsequent sale of its fingerprint scanners infringes its patent under the theory of inducement. Here, Suprema manufactures the scanners in Korea that are imported into the U.S. and these scanners are then sold to Mentalix, who adds a software to the scanner which is then sold to the customers. USITC found that scanner/software combination sold by Mentalix directly infringed the asserted method claims and that Suprema induced this infringement, and issued an exclusion order prohibiting the importation of the scanners. On appeal, the Federal Circuit held that ITC cannot issue an exclusion order on a theory of induced infringement where direct infringement does not occur until after the importation of the product into the U.S.
On September 4, 2014, Nvidia Corporation filed a Section 337 complaint with the U.S.I.T.C. against Samsung alleging that certain consumer electronics and display devices with graphics processing and graphics processing units infringe its patent(s).
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Disclaimer: The content in this blog is solely for informational purposes and does not constitute legal advice.
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