On December 19, 2014, the U.S. Court of Appeals for the Federal Circuit issued a non-precedential decision affirming the International Trade Commission's (the "Commission") final determination of no violation of Section 337 in Creative Kingdoms, LLC et al. v. Int'l Trade Comm'n (2014-1072).  This was an appeal by Complainants Creative Kingdoms, LLC and New Kingdoms, LLC (collectively, "CK") in connection withCertain Video Game Systems and Wireless Controllers and Components Thereof (Inv. No. 337-TA-770). 

By way of background, on April 27, 2011, the Commission instituted this investigation based on CK's complaint alleging that Nintendo Co. Ltd and Nintendo America, Inc. (collectively, "Nintendo") violated Section 337 of the Tariff Act of 1930, as amended, by infringing certain claims of U.S. Patent Nos. 7,500,917 (the '917 patent); 7,896,742 (the '742 patent); 7,850,527; and 6,761,637.  The accused products were gaming systems and related components and software including Nintendo's Wii Remote, Wii MotionPlus, Wii Remote Plus, Nunchuk, Wii consule, and Wii U Console.  After a Final ID, and a Commission review of some of the issues of the Final ID, the Commission remanded the case to the ALJ and on May 7, 2013 the ALJ issued a Remand ID finding no violation of Section 337.

On September 12, 2013, the Commission determined to affirm, with modifications, the ALJ's finding of no violation of Section 337.  Specifically, the Commission determined to affirm, with modifications, the ALJ's finding that claim 7 of the '917 patent and claim 24 of the '742 patent are invalid for lack of enablement and for lack of written description, and that CK failed to show that the domestic industry requirement was met with respect to the '917 and '742 patents.  See our October 31, 2013 post for more details on the Commission's final determination.  On appeal, CK challenged the aforementioned findings by the Commission.

In its decision, the Federal Circuit noted that it agreed with the Commission's enablement conclusion.  Specifically, the Federal Circuit determined:

Here, the novelty of the asserted claims includes the use of sensors in combination, and the scope of the asserted claims includes both mechanical and electronic sensors.  But the two specifications contain no guidance as to how electronic sensors, such as accelerometers and gyroscopes, can be substituted or added to detect different motions, as required by the asserted claims.  Instead, the specifications merely include a laundry list of the types of electronic sensors that could be used. '917 Patent col. 10:32–42; '742 Patent col. 10:56–66.  Without any further guidance, the specifications fail to disclose how to make and use the full scope of the asserted claims.  Accordingly, the asserted claims are invalid for lack of enablement.

Lastly, the Federal Circuit determined that because the Commission correctly determined that the asserted claims are invalid for lack of enablement, it need not address CK's other arguments regarding written description, infringement, and domestic industry.