ITC Monthly Wrap-Up: September 2023

In September 2023, complainants filed three new Section 337 complaints in the International Trade Commission:

1. Electronic Devices Including Smartphones, Computers, Tablet Computers, and Components Thereof, Dkt. No. 3692, filed by InterDigital, Inc., et al. and naming as respondents Lenovo Grp. Ltd., Lenovo (United States) Inc., and Motorola Mobility LLC (instituted October 5, 2023 as Inv. No. 337-TA-1373 and assigned to ALJ McNamara).
2. Certain Fitness Devices, Streaming Components Thereof, and Systems Containing Same, Dkt. No. 3693, an enforcement complaint filed by DISH Technologies L.L.C., et al. and naming as respondents NordicTrack, Inc, FreeMotion Fitness, Inc., and iFIT Inc. (previously instituted as Inv. No. 337-TA-1265).
3. Smart Ceiling Fans, Components Thereof, and Associated Systems and Software, Dkt. No. 3694, filed by Wangs Alliance Corp., d/b/a WAC Lighting, et al., and naming as respondents Tech Lighting LLC and VC Brands, LLC (pending institution).

The Commission also instituted one new Section 337 investigation in September:

1. Vaporizer Devices, Cartridges Used Therewith, and Components Thereof, Inv. No. 337-TA-1372 (assigned to ALJ Hines).

This month’s ITC Wrap-Up reviews recent developments in the Commission’s scope of authority to review (1) infringement by “alternative” products and (2) infringement of claims other than those a product was accused of infringing, as addressed in Certain Outdoor and Semi-Outdoor Electronic Displays, Products Containing Same, and Components Thereof, Inv. No. 337-TA-1331, Comm’n Op. (Sept. 11, 2023).

In its 2020 decision in Certain Human Milk Oligosaccharides & Methods of Producing the Same, Inv. No. 337-TA-1120, Comm’n Op. at 18, 2020 WL 3073788, at *9 (June 8, 2020), the Commission provided “a four-factor test as to whether … infringement of a redesigned product should be adjudicated.” Those factors are (1) whether the product is within the scope of the investigation, (2) whether it has been imported, (3) whether it is sufficiently fixed in design, and (4) whether it has been sufficiently disclosed through extensive discovery. Id. at *11 (citing Certain Two-Way Radio Equipment and Systems, Related Software, & Components Thereof, Inv. No. 337-TA-1053, Comm’n Op. at 8, 2018 WL 8648379, at *13-14 (Dec. 18, 2018)).

More recently, in Certain Electronic Displays, the respondents relied on the Oligosaccharides factors in seeking summary determination of noninfringement for four categories of products. Motion at 4, 8-9, 13-14. Those products included alternative products that were not accused of infringement in the investigation and products that were accused of infringement but only for different claims of the asserted patents. The complainant argued that the Commission should decline to take up summary determination as to all four groups. Response at 4-8, 18-20, 23. According to the complainant, Oligosaccharides only applies to “redesign” products, not to alternative, unaccused products or to unasserted claims of an asserted patent. Id.

The ALJ disagreed, finding that there is “no meaningful difference between a redesigned product and an alternative non-accused product” and adjudicating summary determination as to all four groups of products. Order No. 21 at 4. In doing so, the ALJ cited the Commission’s policy “in favor of preventing subsequent and potentially burdensome proceedings that could have been resolved in the first instance in the original Commission investigation” and found that adjudicating the unaccused products and unasserted claims would promote efficiency and aid the enforcement of any remedial order. Id. at 5, 17 n.19 (quotations omitted). 

The Commission subsequently determined to review the initial determination, and on September 11, 2023, issued an opinion affirming the ALJ. The Commission, however, was divided as to whether Oligosaccharides permitted the Commission to address summary determination of those products and claims in the first place. Commissioner Stayin “would vacate the summary determination and reverse the ID’s determination that the products at issue were eligible for adjudication of infringement,” explaining his view that the “Commission’s resources are best served by not adjudicating infringement” of unaccused products and unasserted claims. Comm’n Notice at 3 n.3. On the other hand, Commissioner Kearns agreed with the initial determination, but noted “that application of the so-called Oligosaccharides factors is highly dependent on the facts of record in a particular investigation.” Id. at 3 n.2.

This opinion highlights the developing landscape of the Commission’s authority—and willingness—to adjudicate products and claims that are not raised by the complainants. As Commissioner Kearns explained, the Commission “will closely examine the issues raised by [Certain Electronic Displays] with respect to future applications of the Oligosaccharides factors to ‘alternative’ products and to claims that were not asserted with respect to a product that was an accused product for other asserted claims.” Id.