In a recent order, ALJ McNamara reiterated that her Ground Rules require live direct and cross-examination testimony and any party seeking to utilize witness statements in lieu of live testimony must do so by motion. She emphasized such a motion will virtually never be granted for expert witnesses.
Complainants often must rely on indirect infringement to prove a violation of Section 337. Indirect infringement may be in the form of induced or contributory infringement. In a recent opinion, the Commission clarified issues relating to post-importation inducement and distinctions between induced and contributory infringement. Certain Digital Video Receivers And Hardware And Software Components Thereof, Inv. No. 337-TA-1001, Commission Opinion (December 6, 2017).
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.
In response to the Federal Circuit’s reversal of the ITC’s indefiniteness and invalidity finding, the Commission remanded the investigation to ALJ with instructions to issue an ID within 30 days.
ALJ Shaw held that the “colorable difference” test established by the Federal Circuit in its en banc Tivo v. Echostar opinion was not the appropriate test to determine whether the CDO was violated.
Last week, Judge Essex issued a notice updating his ground rules in active investigations pending before him.