By: Vishal Khatri and Blaney Harper On February 27, 2018, Administrative Law Judge (“ALJ”) Bullock issued an Initial Determination granting Respondents’ renewed emergency motion to terminate the Investigation because the Commission will be unable to issue a final determination prior to the expiration of the patent at issue. Certain IOT Devices and Components Thereof (IOT, the Internet of Things) – Web Applications Displayed on a Web Browser, Inv. 337-TA-1094, Initial Determination (Feb. 27, 2018).

In this investigation, Dr. Lakshmi Arunachalam (“Complainant”) filed a complaint asserting that several companies infringed U.S. Patent No. 7,930,340 (the “’340 patent”). On January 17, 2018, the Commission instituted the investigation against four of the proposed respondents, Apple Inc., Facebook, Inc., Samsung Electronics America, Inc. and Samsung Electronics Co., Ltd. (collectively “Respondents”). The institution decision required the ALJ to hold an early evidentiary hearing pursuant to the 100-Day Pilot Program timeline to determine whether the Complainant has satisfied the domestic industry requirement.

Shortly after institution of the Investigation, Respondents filed an emergency motion to terminate the Investigation for good cause pursuant to commission rule 210.21(a).   Respondents argued that the ’340 patent had an expiration date of March 5, 2018 and that under the procedural schedule set by the 100-Day schedule, the patent would expire shortly before the evidentiary hearing and almost two months before the issuance of the Initial Determination. According to the Respondents “allowing the investigation to continue – even briefly – would needlessly waste the resources of the Commission, the ALJ, and the parties.”

ALJ Bullock noted that the impending expiration of the ’340 patent is not disputable and that the Commission does not have the authority to alter the March 5, 2018 expiration date. He ultimately concludes that “[g]iven the structure of section 337 investigations, there is not sufficient time for [him] to issue an initial determination on violation, let alone an early determination on domestic industry before the March 5, 2018 expiration of the ’340 patent.” As a result, ALJ Bullock grants Respondents’ motion to terminate the Investigation in its entirety.

Takeaway

Complainants and Respondents alike should be mindful of the procedural schedule in their investigation as it relates to the expiration date of the patents at issue. Parties should account for these issues when developing their respective case strategies.

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Blaney Harper's practice focuses on strategic patent litigation representing electronics, software, and information technology companies in matters such as patent enforcement in United States District Courts and the International Trade Commission (ITC). Blaney also represents and counsels clients concerning patent portfolio development and patent prosecution and appeal, including Inter Partes Review, in the USPTO. Blaney co-chairs the Firm's ITC practice and is the IP Practice Coordinator for the Washington Office.