Posts Tagged: "domestic injury requirement"

Cypress intends to vigorously pursue its two pending district court lawsuits against GSI, which include three of the patents asserted in the ITC investigation and seven additional patents. Those cases are No. 11-cv-00789, filed March 30, 2011, before Judge Patrick J. Schiltz in the United States District Court for the District of Minnesota, and No. 13-cv-02013, filed May 1, 2013, before Judge Jon. S. Tigar in the United States District Court for the Northern District of California. Cypress has asserted that GSI’s SigmaQuad-II™, SigmaQuad-III™, SigmaDDR™, standard Synchronous, and NBT SRAMs infringe multiple Cypress patents.

After examining the record of the investigation the Commission decided to review the ALJ’s determination with respect to the claim construction of the phrase “touch sensitive input device,” which appears in claim 1 of the ‘862 patent. The Commission will also review: (1) the finding that the accused products literally infringe claim 1 of the ‘862 patent; (2) the finding that Harris ‘464 anticipates claim 1 of the ‘862 patent; and (3) the finding of non-obviousness. In connection with the Commission’s review, the parties have been requested to brief their positions these discrete issues.  The Commission will review no other issues.

One of the requirements of finding a violation of section 337 of the Tariff Act of 1930 is that the Complainant must establish that “an industry in the United States, relating to the articles protected by the [intellectual property right] … concerned, exists or is in the process of being established.

Recently the Federal Circuit, sitting en banc, denied Nokia’s petition for rehearing. The Federal Circuit decision is nevertheless interesting for its treatment of Section 337’s “domestic industry” requirement as it is applied to NPEs. Under 19 U.S.C. §1337(a)(2), relief at the Commission is predicated on the existence or establishment of an industry in the United States “relating to the articles protected by the patent.” This is commonly known as the “domestic industry” requirement. In turn, section 1337(a)(3) provides that an industry is considered to exist if there is in the United States, “with respect to the articles protected by the patent,” significant investment in plant or equipment, significant employment of labor or capital, or “substantial investment in [the patent’s] exploitation, including engineering, research and development, or licensing” (emphasis added).

Perhaps the infringer lobby needs a refresher course on the rights granted to a patent owner. 35 U.S.C. § 271(a) says: “whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States, or imports into the United States any patented invention during the term of the patent therefor, infringes the patent.” (emphasis added). So, as it turns out, importation of products covered by a patent during the term of the patent are an infringement of the patent rights granted. Let’s not forget that at the end of the day what these Silicon Valley elite are arguing is that it should be more difficult for a patent owner to stop infringement. The wrong-doers are NOT the patent owners who have the audacity to exercise rights granted by the federal government. The wrong-doers are those who infringe those rights and there is absolutely no reason to make it easier for them to engage in infringement.

On Friday, July 6, 2012, the United States Court of Appeals for the Federal Circuit issued a decision in General Electric Co. v. ITC. The Federal Circuit, per Judge Newman with Chief Judge Rader and Judge Linn, did not give GE a total victory, but victory enough over Mitsubishi. The Federal Circuit affirmed in part and reversed in part the original decision of the ITC, and remanded the case for further proceedings consistent with the decision. Ultimately, the Federal Circuit ruled that claim 15 of the ‘985 patent, correctly construed, covers the domestic industry turbines. Of note, the CAFC continues to interpret “connected to” and “coupled to” as not requiring physical separation.

Put simply, Section 337 requires that an ITC complainant show that, as of the time of filing, (a) it maintains a certain level of economic activity within the United States in connection with the asserted intellectual property right, and (b) this economic activity is devoted to exploiting the intellectual property right at issue (in the case of a patent, at least one claim of the asserted patent). Alternatively, the complainant may show that a domestic industry “is in the process of being established.” This standing requirement is called the “domestic industry requirement,” and the two sub-requirements listed above are called respectively the “economic prong” and the “technical prong” of the domestic industry requirement. “Domestic industry” is a term of art that refers to the entity or entities exploiting the asserted intellectual property in the United States – the rights holder, plus its licensees, if any.