January 14, 2013
ITC Clash
The lawlessness of the CAFC continues. Before the ITC, InterDigital, an American company, managed to outmaneuver Nokia, a Finnish company, from importing products. Chief Judge Rader led a pack of nine in spouting nonsense in defense of domestic corporatism. Only Judge Newman had her wits about her. "InterDigital does not manufacture the patented invention in the United States, and no domestic industry produces the items for which exclusion is sought. The license that InterDigital seeks to impose on Nokia, on threat of exclusion of importation, is not a license to manufacture any patented product in the United States; it is a license to import products made in foreign countries. The panel majority errs in holding that Congress intended to authorize access to the ITC exclusion remedy in such circumstances. That is not the purpose of the "licensing" amendment to Section 337 of the Tariff Act. The panel majority erred in holding that the domestic industry requirement is met by licensing the importation of foreign-made products." (CAFC 2010-1093)
Posted by Patent Hawk at 1:18 AM | ITC
February 12, 2012
Inky
The wonders of the Chinese nation
are remarkable. Their respect for the environment is matched by their
scrupulous business practices and freedom-loving governance. So
it
comes as a shock that Ninestar Technology, a Chinese company with
American subsidiaries, had been found committing "unfair trade
practices based on infringement of certain United States patents by the
importation and sale of ink printer cartridges produced in China."
There was something of a communication problem. Fairness does not
translate well into Chinese. Upon being ordered to stop importation by
the ITC, Ninestar "did not simply ignore or disregard the Commission's
orders; they deliberately evaded the orders." Ninestar argued that the
ITC "does not have jurisdiction over Ninestar China;" that "a
non-judicial body cannot be assigned authority to issue a punitive
penalty for violation of an administrative order. Ninestar argues that
the statutory penalty is of such magnitude as to be criminal in nature
and that a procedure whereby an administrative agency levies a criminal
penalty is an unconstitutional violation of separation of powers"; that
the ITC's "cease and desist order is 'unconstitutional on its face'
because it is 'unclear' in that it does not identify the specific ink
cartridges and model numbers that are affected." On appeal, the CAFC
was unmoved the Ninestar's inky arguments. These U.S. government
bureaucracies and courts are not so unbiased and free-thinking as the
Chinese. (CAFC 2009-1549)
Posted by Patent Hawk at 4:35 PM | ITC
October 12, 2011
Affront Abroad
"Amsted
Industries Inc. is a domestic manufacturer of cast steel railway wheels. It owns
two secret processes for manufacturing such wheels... Amsted has licensed [one
of the secret processes,] the ABC process, to several firms with foundries in
China... TianRui sought to license Amsted's wheel manufacturing technologyy, but
the parties could not agree on the terms of a license. After the failed
negotiations, TianRui hired nine employees away from one of Amsted's Chinese
licensees." TianRui got rolling on new wheels. Whereupon, "Amsted filed a
complaint with the Commission alleging a violation of section 337 based on
TianRui's misappropriation of trade secrets. Section 337(a)(1)(A) prohibits '[u]nfair
methods of competition and unfair acts in the importation of articles... into
the United States, ... the threat or effect of which is... to destroy or
substantially injure an industry in the United States.'"
Continue reading "Affront Abroad"
Posted by Patent Hawk at 11:53 AM | ITC
June 4, 2011
Microphone
Knowles
Electronics put MemsTech before the ITC because "the importation and sale of
certain silicon microphone packages violated § 337 of the Tariff Act of 1930 as
amended, 19 U.S.C § 1337." In other words, patent infringement. Knowles' patents
were found valid and infringed by MemsTech's importation. MemsTech appealed, in
a matter of interest only for a review of crusty case law.
Posted by Patent Hawk at 3:13 PM | ITC
May 23, 2011
Shorted
Semiconductor
chip design meister Tessera has paid many a college tuition for the kids of
patent litigators, as well as raking in boucoup in licensing. Today's episode
sizzles from the ITC complaint dating to the close of 2007 against 18 importers.
10 made it to appeal, but with Tessara appealing its bad chips: noninfringement
and patent exhaustion.
Posted by Patent Hawk at 11:13 PM | ITC
April 28, 2011
Engaged
The
ITC is a convenient forum for trade-related patent infringement, but
adjudication quality can be spotty. The common problem: claim construction. The
flaw on display today was importing too much into a claim term. What the
administrative law judge (ALJ) got right, the ITC reversed into error.
Posted by Patent Hawk at 1:39 PM | ITC
December 21, 2010
Chipper
Tessera
designs semiconductors, and thereby manufactures patent litigations. This
episode emanates from the ITC, in an action against several parties: Spansion,
Freescale, ATI, STMicro, and Qualcomm. Motorola settled.
5,852,326 and
6,433,419, going to a particular semiconductor packaging, were asserted.
After typical bureaucratic discord, the ITC found the patents valid and
infringed. The inevitable CAFC appeal inevitably went to claim construction,
infringement, and validity.
Posted by Patent Hawk at 11:36 PM | ITC
August 30, 2010
Misuse
Compact discs (CDs) became commercially viable by creating an international
standard, insipidly called the "Orange Book." Philips was instrumental in
developing the Orange Book standard, as well as holding patents covering a
portion of the standard. CD maker Princo licensed Philips' CD patent portfolio,
then peeved itself, that it was forced to license irrelevant patents as part of
the deal. So Princo stopped paying licensing fees, and got hauled before the ITC
for its failure to pay the rent. The ITC found patent misuse, which the
CAFC reversed
and remanded. The ITC took the hint, and turned a deaf ear to Princo's
patent misuse defense. Princo appealed. A
CAFC
divided panel then ruled in confusion, again remanding. All
involved filed petitions for an en banc rehearing. So here we are.
Posted by Patent Hawk at 5:20 PM | Antitrust
August 28, 2010
Shocking
Pass
& Seymour (P&S) has patents claiming ground fault circuit interrupters (GFCIs):
5,594,398;
7,164,564;
7,212,386; and
7,283,340. GFCIs halt a ground fault: preventing shocking a consumer laying
hands upon a defective household appliance plugged into the wall. "GFCIs operate
by detecting a difference in electrical current flowing into and out of the
connected appliance." Pass & Seymour sought to shock alleged importing
infringers by plugging them into the ITC. Some claims sizzled to a importation
ban, while others fizzled out. All finding fault, all appealed.
Posted by Patent Hawk at 12:00 AM | ITC | Comments (3)
February 25, 2010
Crock
The
International Trade Clowns (ITC) handed a crock to clog maker Crocs when it
asserted
6,993,858 and
D517,789: '858 was found obvious and '789 not infringed. Crocs squealed and
appealed to the CAFC, which stepped in it and splattered the ITC with both feet:
utility and design patent case law.
Posted by Patent Hawk at 11:24 PM | ITC | Comments (9)
October 6, 2009
Blow Job
GE
blew Mitsubishi into the ITC for infringing wind turbine patents
5,083,039;
6,921,985; and
7,321,221. Mitsubishi was initially found in violation for '039 and '985.
Then the political breeze blew in. ITC's Office of Unfair Import Investigations
(OUII), assigned to represent the public interest, disagreed with the initial
finding. The OUII petitioned the full commission to blow the matter away. Now
two Senators are breaking wind over it. Sens. Blanche Lincoln, D-Ark., and Ron
Wyden, D-Ore, with vested interests in wind power, are urging an airing out by
the ITC. A Mitsubishi wind turbine complex is installed in Oregon. A wedge issue
is whether GE met the requirement of practicing the claimed inventions
domestically. It doesn't take a weatherman to know which way this wind blows.
Posted by Patent Hawk at 12:42 AM | ITC | Comments (9)
June 26, 2009
Double Zap
Samsung
and Sharp have been warring over TV patents at the ITC. Earlier this month,
Samsung was found infringing Sharp patents. All the ITC does, or can do, is
issue an exclusion order. Now the ITC has determined that Sharp infringes a
single Samsung patent. One of the two asserted Samsung patents got tossed. Expect the TVs to
stay on store shelves while a cross-license is worked out.
Posted by Patent Hawk at 11:12 AM | ITC
May 27, 2009
Projection
The
hit-or-miss ITC scores another miss in its handling of Norgren's patent
assertion against SMC. An administrative law judge (ALJ) found non-infringement
on a faulty claim construction, and the Commission let the matter drop. The CAFC
had to get the flow going again for Norgren.
Posted by Patent Hawk at 9:40 PM | ITC
May 22, 2009
Overreaching Thoughtlessness
Philips
Lumileds went after Epistar at the ITC over
5,008,718 and succeeded. Because the ITC didn't even let Epistar argue prior
art invalidity. And the ITC went so far as to block importation of "products by
entities not named as respondents before the ITC." On appeal, the CAFC affirmed
the Commission's claim construction, but remanded for shutting Epistar out of
any defense, not to mention its overbroad exclusion order.
Continue reading "Overreaching Thoughtlessness"
Posted by Patent Hawk at 5:04 PM | Claim Construction
May 21, 2009
Chipper
Overturning
an administrative law judge's mistake, the ITC found Tessera patents infringed
by six rivals: ATI Technologies, Freescale Semiconductor, Motorola, Qualcomm and
Spansion (STMicroelectronics NV). Tessera prompted the action in 2007. The ITC
issued a limited exclusion order, prohibiting the importation of semiconductor
chips that infringe several Tessera patents, and further issued cease-and-desist
orders to Motorola, Qualcomm, Freescale and Spansion. Motorola mused that it may
exercise an option agreement with Tessera to take a patent license. Tessera
shares soared 17.7% as punters exercised a little irrational exuberance.
Posted by Patent Hawk at 7:04 PM | Patents In Business
Linear
Linear
Technology "filed a complaint with the United States International Trade
Commission ("the Commission") under section 337 of the Tariff Act of 1930, 19
U.S.C. § 1337(a)(1)(B), alleging that Advanced Analogic Technologies, Inc. ("AATI")
imported and/or sold for importation certain electronic voltage regulators that
infringe U.S. Patent No.
6,580,258 ("the '258 patent")." The ITC, randomly competent, made something
of a hash of the matter. It did find some infringement. And so both sides
appealed. Where broad, the ITC's claim construction held up. In the single
instance the ITC construed narrowly, it goofed. But that made all the difference
in infringement.
Posted by Patent Hawk at 6:29 PM | Claim Construction
April 21, 2009
Peeing on the Pool
Four
companies pooled patents covering the industry standard for music and data CDs.
The standard, set in the early 1990s, was codified in the "Orange Book." The
Orange Book standard created compatibility for CD readers and writers, thus
creating a single market. Consumers could buy CDs, knowing that they would work
with any player, because of the Orange Book standard. If you want to manufacture
a CD writer, you have to first pop to the one-stop shop for a patent pool
license.
Continue reading "Peeing on the Pool"
Posted by Patent Hawk at 10:41 PM | Antitrust | Comments (1)
March 1, 2009
Whoopspool
In
January 2008, Whirlpool put LG Electronics before the ITC, and in Delaware
district court, for infringing five refrigerator patents. The best day for the
plaintiff was the day they filed, at least before the ITC. As the flowers
bloomed in May, Whirlpool's wilted, dropping two, as Whirlpool conceded their
invalidity. September blew in. Leaves fell, as did two more patents before the
ITC, as LG agreed to tweak its design. This past week, the ITC administrative
judge crushed the ice bin patent assertion for noninfringement (6,082,130).
Meanwhile, the district court case remains scheduled for trial March 2010. At
least for now.
Posted by Patent Hawk at 2:19 PM | Litigation
October 14, 2008
Down Boy
As
part of their ongoing patent war, Broadcom put Qualcomm before the ITC for
infringing
6,714,983. The ITC did not find direct infringement, but did find inducing
infringement, hence "issued a limited exclusion order ("LEO") against the importation
of all downstream products containing the accused technology." By doing so, the
ITC showed no respect for due process, and exceeded its statutory authority.
Also herein, more caprice by the CAFC in complicating claim construction, and
inconsistency in defining prior art.
Posted by Patent Hawk at 4:42 PM | Injunction
July 8, 2008
Disappointed
InterDigital
is trying to hammer Samsung into licensing submission for five of its cell phone
patents though the ITC. An ITC staff recommendation, just issued, recommended
against granting injunctive relief. On that news, InterDigital shares shed 22.6%
of their value, dropping $5.72 to $19.54. Investors are a squeamish bunch.
Continue reading "Disappointed"
Posted by Patent Hawk at 4:38 PM | ITC
May 20, 2008
Big Gorilla Cuts A Dud
In
an ongoing tussle in various venues, Microsoft had accused patent bad-boy
Alcatel-Lucent before the ITC of infringing four patents claiming
telephone/computer integration. In the first round, the ITC administrative law
judge found one infringed. Today, the full commission peeled the last banana,
finding non-infringement. So much for due diligence by Microsoft, member of the
Coalition of Patent Fairness, a mega-corporation lobbyist that rails about
asserting junk patents.
Posted by Patent Hawk at 5:02 PM | ITC | Comments (3)
May 7, 2008
Out of Gear
Solomon
Technologies took Toyota to the ITC over
5,067,932, accusing the transaxles on Toyota's hybrid models. An ITC judge
found no infringement, and the asserted claim not enabled. Solomon appealed.
Continue reading "Out of Gear"
Posted by Patent Hawk at 10:10 PM | Claim Construction
April 24, 2008
Objectively Baseless
Dominant Semiconductors, being found to infringe a number of LED patents owned by OSRAM GmbH, filed suit against OSRAM alleging unfair competition, intentional interference with contractual relations, interference with prospective economic advantage, and trade libel arising from OSRAM's communication to customers regarding Dominant's possible infringement. Dominant, apparently forgetting that they lost the infringement battle, claimed OSRAM's communications regarding possible infringement were "objectively baseless". Turns out, the only thing objectively baseless was Dominant's suit. Summary judgment granted in favor of OSRAM. CAFC affirmed.
Continue reading "Objectively Baseless"
Posted by Mr. Platinum at 7:52 AM | Case Law
April 22, 2008
Antecedent Basis
They
killed the bunny patent. It's enough to make you cling to your guns and
religion. Energizer tried to zap Chinese battery makers using the ITC,
but the ITC pulled the plug. Twice. On appeal, a non-precedential decision,
owing to all-around discord in the panel. A badly drafted claim loses its juice
on antecedent disconnect.
Continue reading "Antecedent Basis"
Posted by Patent Hawk at 1:17 AM | § 112 | Comments (3)
March 27, 2008
Reverse Gear
After
getting the hard
word from a Congressman, the ITC has reversed an administrative judge's stay
in pursuing Tessera's claims of infringement against Motorola, Freescale
Semiconductor, Qualcomm and other DRAM suppliers.
Posted by Patent Hawk at 11:29 PM | ITC
March 24, 2008
On Behalf
Connecticut
Congressman Christopher Shays
wrote
the Chairman of the ITC last week, carping about the ITC sitting on its thumbs
during a PTO reexam while Tessera's patents wither on the vine.
Posted by Patent Hawk at 11:42 PM | ITC
March 19, 2008
Safe Harbor
Amgen complained to the ITC about
Roche importing a particular hormone as an infringement of Amgen process and
product patent claims. Roche got off the hook using 35 U.S.C. §271(e)(1), the
"safe harbor" statute, because the importation was allowed for drug development.
Amgen appealed, largely unsuccessfully.
Continue reading "Safe Harbor"
Posted by Patent Hawk at 1:24 PM | ITC
February 27, 2008
Shorted Out
Tessera,
semiconductor miniaturization maven, took a half-dozen companies to task before
the International Trade Commission (ITC), including Motorola, Qualcomm,
Freescale Semiconductor, and ATI, a unit of Advanced Micro Devices (AMD). Monday
morning, just before the ITC trial was scheduled to begin, Administrative Law
Judge Theodore Essex brought the tent poles down, pending reexamination outcome
of the asserted Tessera patents.
Continue reading "Shorted Out"
Posted by Patent Hawk at 12:56 PM | ITC
January 7, 2008
When the Chips are Down
Tessara
is putting the pressure on at the ITC and in district court against a bevy of
chip makers and importers for infringing chip packaging patents. The move is, in
part, an attempted counter against falling stock price, which has declined 5.4%
over the last year.
Continue reading "When the Chips are Down"
Posted by Patent Hawk at 12:08 AM | ITC
January 6, 2008
Headphoned
Bose
is attempting noise reduction in the market for headphones, lodging complaint at
the ITC against Panasonic, Creative Labs, and Logitech, among others, for
infringing
5,181,252 and
6,597,792.
Posted by Patent Hawk at 11:51 PM | ITC
January 2, 2008
Barbequed
The
cell phone chip battle of the decade sizzles on. Though Broadcom pecked first in
2005, Qualcomm started it by playing "chicken," and has been roasted on the spit
ever since. After suffering an
ITC import ban
last year, Southern California U.S. District Judge James Selna has slapped
another injunction on Qualcomm.
Posted by Patent Hawk at 5:11 PM | ITC
December 22, 2007
Lexicography
Flexsys
slammed Sinorgchem at the ITC, winning a limited exclusion order. Sinorgchem
appealed. The CAFC instructed the ITC on claim construction.
Continue reading "Lexicography"
Posted by Patent Hawk at 1:38 AM | Claim Construction | Comments (5)
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