On 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.
On November 6, 2012, the Commission decided to review a variety of issues and ultimately remanded to the ALJ.
On May 7, 2013, the ALJ issued a remand ID finding no violation of section 337. The ALJ found that (i) respondents do not infringe claim 7 of the ‘917 patent; (ii) respondents do not contribute to the infringement of claim 24 of the ‘742 patent; (iii) the asserted claim of the ‘917 patent is not invalid for anticipation; (iv) the asserted claim of the ‘917 patent is not invalid for obviousness; (v) the asserted claim of the ‘742 patent is not invalid for obviousness; (vi) complainant has satisfied the technical prong of the domestic industry requirement for the ‘917 patent; and (vii) complainant has satisfied the technical prong of the domestic industry requirement for the ‘742 patent. The ALJ determined that it was unnecessary to revisit his previous finding in his final ID that complainant has not satisfied the economic prong of the domestic industry requirement for the ‘742 and ‘917 patents.
On July 8, 2013, the Commission decided to review a variety of issues from the remand ID, including: (1) whether the accused products directly infringe the asserted claim of the ‘917 patent; (2) whether the independently sold Wii MotionPlus and Nunchuck accessories contributorily infringe the asserted claim of the ‘742 patent; (3) non-obviousness of the asserted claim of the ‘742 patent; and (4) whether the technical prong of the domestic industry requirement is met with respect to the ‘917 and ‘742 patents.
After examining the complete record, including the ALJ’s final ID, remand ID, and the submissions of the parties, the Commission affirmed, with some modifications, the ALJ’s finding of no violation of Section 337. Specifically, the Commission affirmed, with some modifications, the ALJ’s finding that claim 7 of the ‘917 patent and claim 24 of the ‘742 patent were invalid for lack of enablement and for lack of written description, and that complainant has not shown that the domestic industry requirement is met with respect to the ‘917 and ‘742 patents.
The Commission also determined that complainant had not shown that the accused products directly infringe claim 7 of the ‘917 patent because they do not meet the limitation “command,” and that complainant had not shown that the accused products directly infringe claim 24 of the ‘742 patent because they do not meet the limitation “activate or control.” The Commission also determined that complainant had not shown that the independently sold Wii MotionPlus and Nunchuck accessories contributorily infringe claim 24 of the ‘742 patent.
Tags: Creative Kingdoms, Enablement, enablement requirement, International Trade Commission, ITC, Nintendo, patent, patents, U.S. International Trade Commission, written description, Written Description Requirement
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