Nintendo Prevails at ITC in Wii Case

WiiOn Sept. 12, 2013, Nintendo won a patent infringement case brought at the International Trade Commission by Creative Kingdoms. The commission found that Nintendo’s Wii and Wii U systems do not infringe Creative Kingdoms’ patents. The commission also found that Creative Kingdoms’ patents are invalid.

On April 27, 2011, the Commission instituted the investigation based on a complaint filed by Creative Kingdoms, LLC of Wakefield, Rhode Island and New Kingdoms, LLC of Nehalem, Oregon. The complaint alleged violations of Section 337 by reason of infringement of certain claims of U.S. Patent Nos. 7,500,917 (“the ‘917 patent”), 7,896,742 (“the ‘742 patent”), 7,850,527 (“the ‘527 patent”), and 6,761,637 (the ‘637 patent). The ‘637 patent was subsequently terminated from the investigation. On August 31, 2012, the ALJ issued a final Initial Determination (ID) finding no violation of section 337 by Nintendo.

The ALJ found that the accused products infringe sole asserted claim 24 of the ‘742 patent, but that the claim is invalid for failing to satisfy the enablement requirement and the written description requirement under 35 U.S.C. § 112. The ALJ found that no accused products infringe the asserted claims of the ‘917 patent and the ‘527 patent. The ALJ also found that the asserted claims of the ‘917 and ‘527 patents are invalid for failing to satisfy the enablement requirement and the written description requirement. The ALJ concluded that complainant has failed to show that a domestic industry exists in the United States that exploits the asserted patents as required by 19 U.S.C. § 1337(a)(2). The ALJ did not make a finding regarding the technical prong of the domestic industry requirement with respect to the asserted patents. The ALJ also did not making a finding with respect to anticipation and obviousness of the asserted patents.

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CAFC Upholds ITC Exclusion Order in Rule 36 Judgment

man_controlling_trade

“Man Controlling Trade” outside the ITC in DC, by NY sculptor Michael Lantz (1942).

The United States Court of Appeals recently issued a Rule 36 Summary Affirmance of the April 27, 2012 Final Determination of the International Trade Commission (hereinafter “Commission” or “ITC”) in In the Matter of Certain Ground Fault Circuit Interrupters and Products Containing Same. A Rule 36 judgment can be entered without an opinion when it is determined by the panel that any one of five conditions exist and a written opinion would not have precedential value.  See What is a Rule 36 Judgment?  The Federal Circuit judgment affirmed the Commission’s general exclusion order, “prohibiting the unlicensed importation of infringing ground fault circuit interrupters and products containing same,” inhibiting infringement on Leviton Manufacturing’s U.S. Patent No. 7,737,809.

The Commission instituted this particular investigation on October 8, 2010, based on a complaint and an amended complaint filed by Leviton Manufacturing Co., of Melville, New York (“Leviton”). The complaint and amended complaint alleged violations of section 337 of the Tariff Act of 1930, as amended (19 U.S.C. § 1337), in the importation into the United States, the sale for importation, and the sale within the United States after importation of certain ground fault circuit interrupters and products containing the same by reason of infringement of claims 1-7, 9-11, 13-17, 23-26, and 32-36 of U.S. Patent No. 7,463,124 (“the ’124 patent”); claims 1-11, 13-28, 30-59, 61-64, and 74-83 of U.S. Patent No. 7,737,809 (“the ’809 patent”); and claims 1-4 and 8 of U.S. Patent No. 7,764,151 (“the ’151 patent”).

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Patent Litigation Does Not Create “Domestic Industry”

United_States_International_Trade_Commission_sealSeveral weeks ago, the Federal Circuit issued another decision relating to the “domestic industry” requirement.

Motiva, LLC appealed the decision of the International Trade Commission that Nintendo Co., Ltd. and Nintendo of America, Inc. did not violate § 337 of the Tariff Act of 1930 by importing, selling for importation, or selling certain video game systems and controllers. Ultimately, the Federal Circuit determined that the ITC properly determined that a domestic industry does not exist nor is in the process of being established for U.S. Patent Nos. 7,292,151 (“the ‘151 patent”) and 7,492,268 (“the ‘268 patent”). Thus, the decision of the ITC was affirmed.

The dispute between the parties started n 2008, when Motiva filed suit against Nintendo in the United States District Court for the Eastern District of Texas accusing Nintendo’s Wii video game system (“Wii”) of infringing the ’151 patent. The case was later transferred to the United States District Court for the Western District of Washington. In June 2010, that district court stayed the case pending completion of reexamination of the ’151 patent by the U.S. Patent and Trademark Office.

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ITC Issues Initial Determination in Cypress SRAM Investigation

GSI Technology, Inc. (Nasdaq: GSIT) announced on Thursday, October 25, 2012, that Chief Administrative Law Judge Charles E. Bullock issued his initial determination in the patent litigation between GSI and Cypress Semiconductor Corp. (Nasdaq: CY) pending before the International Trade Commission (the “ITC”). The initial determination issued by Judge Bullock held that the importation of GSI’s static random access memories (“SRAM”) products, and products containing them, and the sale within the United States of such products, have not violated applicable federal law with respect to any of the four patents that Cypress had alleged were infringed.

The ITC investigation was instituted in July 2011 in response to a complaint filed by Cypress. The complaint was initially filed with the U.S. International Trade Commission on June 10, 2011, under section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. § 1337. An amended complaint was filed on June 27, 2011 and a letter supplementing the amended complaint was filed on June 28, 2011. A second amended complaint was filed on July 13, 2011. The second amended complaint alleged violations of section 337 based upon the importation into the United States, the sale for importation, and the sale within the United States after importation of certain SRAMs and products containing them by reason of infringement of certain claims of U.S. Patent No. 6,534,805 (“the ‘805 patent”); U.S. Patent No. 6,651,134 (“the ‘134 patent”); U.S. Patent No. 7,142,477 (“the ‘477 patent”); and U.S. Patent No. 6,262,937 (“the ‘937 patent”). The second amended complaint further alleged that an industry in the United States exists as required by subsection (a)(2) of section 337.

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Top 5 Patent Law Blog Posts of the Week

Today we continue our weekly installment highlighting the best of the patent blogosphere from the past week. If there are any patent blogs you think should be highlighted by our Top 5, please comment on this post and we’ll check them out.

1) Patent Docs: Tomato Genome Determined – The recent news that the “entire genomic DNA sequence of the tomato (Solanum lycopersicum) has been deciphered” inspired this post. It takes an in depth look at the “interesting relationships between tomatoes and closely-related species.” No discussion of whether there will be a push to patent the tomato genetic sequence.

2) IP Watchdog: Mobile App Developers Gain Ally to Fight Patent Infringement – This post highlights the attempt to promote innovation within the mobile app industry. The world’s largest patent research community announced the formation of a partnership with a global trade organization for mobile software developers, which this post argues could in fact impact the mobile app industry in a positive way by benefiting the small businesses and individual entrepreneurs behind the technology. (more…)