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IPR Enforcement Actions on Optical Disc Drives, Wireless Devices

Tuesday, September 10, 2013
Sandler, Travis & Rosenberg Trade Report

Potential IPR Probe of Optical Disc Drives Evaluated for Public Interest Issues. The International Trade Commission is requesting comments no later than Sept. 18 on any public interest issues raised by a Section 337 intellectual property rights infringement complaint filed on behalf of Optical Devices LLC against certain optical disc drives, components thereof and products containing same. Comments should address whether the issuance of a limited exclusion order and/or cease and desist orders pursuant to this complaint would affect the public health and welfare in the U.S., competitive conditions in the U.S. economy, the production of like or directly competitive articles in the U.S., or U.S. consumers. In particular, the ITC is interested in comments that:

- explain how the articles potentially subject to the orders are used in the U.S.;

- identify any public health, safety or welfare concerns in the U.S. relating to the potential orders;

- identify like or directly competitive articles that the complainant, its licensees or third parties make in the U.S. that could replace the subject articles if they were to be excluded;

- indicate whether the complainant, its licensees and/or third-party suppliers have the capacity to replace the volume of articles potentially subject to the requested orders within a commercially reasonable time; and

- explain how the requested orders would impact U.S. consumers.

ITC Reviewing Determination of No Violation on Wireless Devices. The International Trade Commission has determined to review in its entirety the final initial determination issued by the presiding administrative law judge that the importation, sale for importation and sale within the U.S. after importation of certain wireless devices with 3G capabilities and components thereof are not violating patents owned by InterDigital Communications LLC, InterDigital Technology Corporation and IPR Licensing Inc.

Among other things, the ALJ found that the importation requirement of section 337 of the 1930 Tariff Act has been satisfied, that the respondents failed to provide they hold licenses under the asserted patents, and that the complainant established the existence of a domestic industry. The ITC is therefore particularly interested in whether, in light of the statutory language, legislative history, prior ITC decisions and relevant court decisions, establishing a domestic industry based on licensing under 19 USC 1337 (a)(3)(C) requires proof of “articles protected by the patent” (i.e., a technical prong). The parties to this investigation are being requested to file written submissions on this issue no later than close of business on Sept. 27.

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