In what appears to be something of a trend in favor of summary dispositions, the International Trade Commission (ITC) has affirmed summary determination rulings of patent invalidity in two, separate investigations: Certain Wireless Headsets, Inv. No. 337-TA-943 and Certain Automated Teller Machines and Point of Sale Devices and Associated Software Thereof, Inv. No. 337-TA-958.

The Wireless Headsets investigation was instituted on January 13, 2015 based on a complaint filed by One-E-Way, Inc. of Pasadena, California against a who’s-who of headphone makers, including, among others, Sony, Beats Electronics, and Sennheiser. The complaint was based on allegations that the respondents’ products infringed two patents directed to wirelessly transmitting and/or receiving audio data, including music data (U.S. Patent Nos. 8,131,391 and 7,865,258). On September 21, 2015 (Order No. 17), Administrative Law Judge (ALJ) Pender granted respondents’ motion for summary determination that all of the asserted claims of the two patents-in-suit are invalid as indefinite under 35 U.S.C. § 112, ¶ 2 in light of the common requirement that audio output be “virtually free from interference.” The Commission affirmed the ALJ’s decision (with some non-substantive modifications) in a notice dated May 12, 2016, which resulted in termination of the investigation with a finding of no violation.

The Automated Teller Machines investigation was instituted on June 9, 2015 based on a complaint filed by Global Cash Access, Inc. of Las Vegas, Nevada against NRT Technology Corp. of Toronto, Canada and NRT Technologies, Inc. of Las Vegas, Nevada. The complaint was based on allegations that the respondents’ products infringed one patent directed to methods for obtaining cash by various processes such as point-of-sale or ATMs (U.S. Patent No. 6,081,792). On October 6, 2015, the presiding ALJ (Chief ALJ Bullock) conducted a Markman hearing, and on December 22, 2015 (Order No. 15) the ALJ issued a claim construction order finding, inter alia, that the term “processor” in each of the asserted claims is indefinite. The ALJ subsequently granted summary determination of invalidity based on indefiniteness (Order No. 17). In its May 16, 2016 notice affirming summary determination, the Commission agreed with the ALJ that “the patent is ambiguous as to whether the claimed ‘processor’ is a payment processor (using the meaning of the term in connection with financial transactions) or a computer processor (as [complainant] [] contends), or both.” The ITC did not terminate the investigation, as other, non-patent claims remain.

Together with the ITC’s April 4, 2016 affirmance of ALJ Lord’s Section 101-based invalidity summary determination in Certain Activity Tracking Devices, Systems, and Components Thereof, Inv. No. 337-TA-963 [see our previous blog post], the affirmances of invalidity summary determinations in Wireless Headsets and Automated Teller Machines seem to signify a new willingness on the ITC’s part to decide cases on dispositive motions. That the affirmed decisions originate from three different ALJs may also provide a significant boost to early disposition on motion and, perhaps, signal potentially heavier use of the ITC’s little-used Pilot Program. In fact, the ITC has provoked such thinking by ordering an early hearing under the Pilot Program in a newly-instituted Section 337 investigation (Certain Portable Electronic Devices and Components Thereof, Inv. No. 337-TA-994) as to whether the asserted claims of the sole patent-in-suit recite patent-eligible subject matter under 35 U.S.C. § 101 [see our previous blog post].

While it is too soon to tell whether these developments are merely coincidence or represent a genuine trend in ITC practice, they are significant and worth noting by all who litigate Section 337 cases.