On March 25, 2011, the U.S. International Trade Commission "determined to review the final initial determination (“ID”) issued by the presiding administrative law judge (“ALJ”) on January 24, 2011, finding no violation of section 337 in the above- captioned investigation."
The breadth of what the parties are now asked to brief suggests the possibility of a fresh review of the infringement case, taking into account prior ITC claim constructions and the successful reexam of the '218.
The parties are being asked to address:
- whether the ALJ permissibly relied on prior art combinations that Kodak did not have a chance to address and whether they render claim 15 invalid for obviousness,
- whether the ALJ should have considered the claim constructions in Inv. No. 337-TA-663 (prior Kodak ITC case against LGE) and what effect those constructions should have in this case,
- whether the ALJ should have considered the reexaminations and what effect those reexaminations should have in this case,
- whether U.S. Patent No. 5,493,335 (the Pularski '335 discussed in a prior post) is prior art, and if so, on what statutory basis,
- the meaning of “color pixel value” in part (b) of claim 15 and whether is is “the value of a color pixel”.
The weight given to the reexamination is certainly a key issue. A presumption that the claims are valid based on the results of the reexam would move the discussion substantially toward item 5, and the associated issues of YCC color space, RGB values, and the meaning of a "at least three different colors."
For reference, claim 15, element (b):
(b) a motion processor for generating from the captured images, a second number of color pixel values provided in a second color pattern having at least three different colors and representative of a series of motion images to be previewed, the second number of color pixel values being less than the first number of color pixel values, and the second color pattern being different from the first color pattern;
The Commission also asks for written submissions on the form of remedy, should one be required. The Commission has the power to "(1) issue an order that could result in the exclusion of the subject articles from entry into the United States, and/or (2) issue one or more cease and desist orders that could result in a respondent being required to cease and desist from engaging in unfair acts in the importation and sale of such articles." The impact that a block of importation of Apple products would have on the public and the economy, however, make that path highly unlikely.
- US ITC Investigation 337-TA-703 NOTICE OF COMMISSION DETERMINATION TO REVIEW A FINAL DETERMINATION OF NO VIOLATION OF SECTION 337; SCHEDULE FOR FILING WRITTEN SUBMISSIONS ON THE ISSUES UNDER REVIEW AND ON REMEDY, THE PUBLIC INTEREST, AND BONDING
- US Patent 6,292,218