On September 21, 2016, in Certain Portable Electronic Devices and Components Thereof, Inv. No. 994, the Commission determined not to review Judge Shaw’s initial determination (“ID”) that the asserted patent, U.S. Patent Number 6,928,433, is directed to ineligible subject matter under 35 U.S.C. § 101. Judge Shaw’s determination was made pursuant to the Commission’s 100-day pilot program for early determination of case dispositive issues.
In this installment of Section 337 Week in Review, investigations 337-TA-1018, 337-TA-1019, and 337-TA-1020 instituted, the Commission denied a request for entry into the 100-Day Pilot Program, and the Commission issued an advisory opinion in 337-TA-933.
On September 13, 2016, in Certain Industrial Control System Software, Systems Using Same, and Components Thereof, the Commission denied a request by one of three respondents to utilize the Early Disposition 100-Day Pilot Program. The Commission’s order helps define the bounds of the Pilot Program.
Over the past two months, administrative law judges have found asserted claims invalid under Section 101 in three separate investigations. Each of these decisions came relatively early in the case, with one issuing pursuant to the Commission’s 100-Day Pilot Program.
In 2013, the United States International Trade Commission (“ITC” or “Commission”) launched its 100-day pilot program (“pilot program”) to test whether early rulings on certain case-dispositive issues could limit unnecessary litigation. To date, the ITC has utilized the pilot program only twice: once on the issue of domestic industry (Inv. No. 337-TA-874) and once on the issue of standing (Inv. No. 337-TA-949). On May 5, 2016, the ITC instituted its third 100-day pilot program investigation—and for the first time on the issue of patent eligible subject matter. The ITC’s decision to utilize the 100-day pilot program for the early determination of a patent validity issue signals a significant broadening of the pilot program going forward.