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IPR Enforcement Actions on Dental Appliances, Wireless Devices, Cell Libraries

Thursday, January 23, 2014
Sandler, Travis & Rosenberg Trade Report

ITC Considers Whether Electronic Transmissions are Articles. The International Trade Commission has extended again, through March 21, the target date for completing patent infringement investigation 337-TA-833 of certain digital models, digital data, and treatment plans for use in making incremental dental positioning adjustment appliances, the appliances made therefrom, and methods of making the same. The ITC has extended this investigation several times following a finding of patent infringement and a recommendation from the presiding administrative law judge to issue cease and desist orders against infringing goods.

The ITC is now soliciting public comment no later than Feb. 3 on whether electronic transmissions are articles within the meaning of Section 337. Answers are sought with respect to the text, structure and legislative history of this law, and commenters should address any potentially relevant judicial precedent and any other potentially informative decisions by other government agencies.

The ITC is also interested in comment on the following questions.

- In analyzing whether the term “articles” encompasses electronic transmissions, should the ITC take into account whether the electronic transmission is of data that is directly representative of a physical article?

- Does the term “processed” in Section 337(a)(1)(B)(ii) include data processing by a computer?

- Does the term “a material” in the phrase “a material or apparatus for use in practicing a patented process” in 35 USC 271(c) include electronic transmissions?

New Patent Infringement Investigations. The International Trade Commission has instituted the following investigations to determine whether imports of the specified products are violating Section 337 of the 1930 Tariff Act.

- Patent infringement investigation 337-TA-905 covers certain wireless devices, including mobile phones and tablets. Complainant Pragmatus Mobile LLC requests that after this investigation the ITC issue a limited exclusion order, which would direct U.S. Customs and Border Protection to prohibit the entry of the infringing products into the U.S., and cease and desist orders, which would require the named respondents to cease actions that violate Section 337, including selling infringing imported articles out of U.S. inventory. The respondents in this investigation are located in Finland, Korea, Japan, Sweden, China and the U.S.

- Patent infringement investigation 337-TA-906 covers certain standard cell libraries, products containing or made using the same, integrated circuits made using the same, and products containing such integrated circuits (e.g., servers, computers, video game systems, televisions, mobile phones and tablets). Complainant Tela Innovations Inc. requests that after this investigation the ITC issue a general exclusion order, which would direct CBP to prohibit the entry of the infringing products into the U.S., and cease and desist orders, which would require the named respondents to cease actions that violate Section 337, including selling infringing imported articles out of U.S. inventory. The respondents in this investigation are located in Taiwan and the U.S.

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