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


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


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.

Continue reading "Microphone"

Posted by Patent Hawk at 3:13 PM | ITC

May 23, 2011


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.

Continue reading "Shorted"

Posted by Patent Hawk at 11:13 PM | ITC

April 28, 2011


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.

Continue reading "Engaged"

Posted by Patent Hawk at 1:39 PM | ITC

December 21, 2010


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.

Continue reading "Chipper"

Posted by Patent Hawk at 11:36 PM | ITC

August 30, 2010


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.

Continue reading "Misuse"

Posted by Patent Hawk at 5:20 PM | Antitrust

August 28, 2010


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.

Continue reading "Shocking"

Posted by Patent Hawk at 12:00 AM | ITC | Comments (3)

February 25, 2010


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.

Continue reading "Crock"

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.

Continue reading "Double Zap"

Posted by Patent Hawk at 11:12 AM | ITC

May 27, 2009


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.

Continue reading "Projection"

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


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 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.

Continue reading "Linear"

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


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.

Continue reading "Down Boy"

Posted by Patent Hawk at 4:42 PM | Injunction

July 8, 2008


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.

Continue reading "On Behalf"

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


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.

Continue reading "Headphoned"

Posted by Patent Hawk at 11:51 PM | ITC

January 2, 2008


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.

Continue reading "Barbequed"

Posted by Patent Hawk at 5:11 PM | ITC

December 22, 2007


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)