Should the PTO’S Reexamination Analysis Impact ITC Cases?

Until now, the  CAFC has not answered the question of the level of consideration a court or the ITC should give to an earlier reexamination and the effect those reexamination findings should have in the present proceeding or investigation.  Scott Daniels, Partner at Westerman Hattori Daniels & Adrian and Practice Center Contributor, passed along this article discussing an investigation pending at the ITC wherein the Commission has raised this question.  Daniels weighs in on whether the CAFC will take this opportunity to answer this looming question.

In January U.S. International Trade Commission Administrative Law Judge Paul Luckern issued his initial determination (ID) finding that Kodak’s U.S. Patent No. 6,292,218 was obvious over the prior art and not infringed by Apple and RIM mobile telephones with digital cameras – these findings were contrary to an ID (by ITC ALJ Carl Charneski) in an earlier investigation that Kodak’s ‘218 patent was valid and infringed by mobile telephones from Samsung and LG.  This past Friday, the Commission announced that it would review Judge Luckern’s determination in favor of Apple and RIM.  As is customary, the Commission’s review focuses on specific aspects of Judge Luckern’s ID, asking the parties to address five specific legal issues – among them, the extent to which the ITC should consider reexamination proceedings (90/010,899) in its analysis of claim construction and validity issues. (more…)