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IPR Enforcement: Activity Trackers, Mobile Electronic Devices

Monday, August 29, 2016
Sandler, Travis & Rosenberg Trade Report

Activity Trackers. In patent infringement investigation 337-TA-963 of activity tracking devices, systems and components thereof, the International Trade Commission is requesting comments no later than Sept. 23 on any public interest issues raised by a recommendation by the presiding administrative law judge to issue a limited exclusion order and cease and desist orders lasting no more than one month if the ITC finds a violation. Comments should address whether the issuance of these orders 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.

Mobile Electronic Devices. The ITC has issued a public reprimand for a breach of the administrative protective order issued in patent infringement investigation 337-TA-794 of mobile electronic devices, including wireless communication devices, portable music and data processing devices, and tablet computers. The ITC said this breach resulted in the improper disclosure of confidential business information to more than 140 unauthorized persons over a 14-month period and illustrate that the failure to safeguard CBI was “a pervasive problem” in the firm being reprimanded.

The ITC said it considered several aggravating factors, including the viewing of CBI by unauthorized persons, the discovery of the breaches by a third party, the violator’s failure and delay in reporting the disclosures when they were discovered, the lengthy period of time in which CBI was unprotected, multiple breaches by the violator’s employees in the same investigation, and multiple breaches by the violator’s employees in a two-year period. The ITC also considered several mitigating factors, including the inadvertent nature of the breaches; the violator’s recent implementation of a firm-wide policy to help prevent unauthorized disclosures; the violator’s prompt and strenuous efforts to investigate, cure, and prevent further breaches; and the fact that a federal district court has already sanctioned the disclosures and conduct underlying the breaches.

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