In Cisco Systems, Inc. v. ITC, No. 16-2563 (Fed. Cir. Sept. 28, 2017), the Federal Circuit affirmed the Commission’s exclusion order entered in Certain Network Devices, Related Software and Components Thereof (I), Inv. No. 337-TA-944.
ALJ Pender’s initial determination in Certain Mobile Device Holders and Components Thereof, Inv. No. 337-TA-1028 (Sept. 12, 2017), finding a violation of Section 337, provides important guidance on what investments count toward the economic prong of the domestic industry requirement. Although Respondents provided no counterarguments because they had defaulted, ALJ Pender analyzed and challenged each of Complainant’s proofs, ultimately finding that the domestic industry requirement had been met.
As we have previously posted, the ITC currently has two open Commissioner positions after the exits of Commissioners Kieff and Pinkert earlier this year. On September 28, 2017, President Trump announced his nomination of Dennis M. Devaney and Randolph J. Stayin to fill these vacancies. These nominations come with the ITC operating with only four out of six Commissioners and a historically high Section 337 caseload.
In an earlier post, we summarized ALJ McNamara’s recent Summary Determination in Certain UV Curable Coatings For Optical Fibers, Coated Optical Fibers, And Products Containing Same, Inv. No. 337-TA-1031, Order No. 33 (July 6, 2017). The ALJ invalidated claims 16-18, 21, and 30 of U.S. Patent No. 7,706,659, because the recited term “molecular weight” was indefinite. On August 7, 2017, the Commission reversed and vacated the determination. An opinion is forthcoming. We will provide an update when the Commission issues its public opinion.
As noted in a previous post, ALJ Lord issued a domestic industry ruling, which the Commission later vacated without position, finding that R&D-based investments in plant and equipment or labor and capital cannot count towards satisfying subsections (A) or (B) of the domestic industry requirement, 19 U.S.C. § 1337 (a)(3). Two recent decisions from the ITC appear to conflict with ALJ Lord’s position, leaving the issue ripe for the Commission to directly address.