On July 6, 2012, the International Trade Commission (the “Commission”) issued the public version of its opinion finding no violation of Section 337 with respect to U.S. Patent Nos. 5,978,063 (the ‘063 patent), 5,648,674 (the ‘674 patent), 5,621,556 (the ‘556 patent), and 5,375,006 (the ‘006 patent) in Certain Liquid Crystal Display Devices, Including Monitors, Televisions, Modules, and Components Thereof (Inv. No. 337-TA-741/749). The Commission also determined to remand the investigation to ALJ Robert K. Rogers, Jr. with respect to U.S. Patent No. 6,121,941 (the ‘941 patent). Due to its size, we have split the opinion into part 1 and part 2.
By way of background, the Complainants in this investigation are Thomson Licensing SAS and Thomson Licensing LLC (collectively, “Thomson”), and the Respondents are Chimei InnoLux Corp. and InnoLux Corp. (collectively, “CMI”); Qisda Corp. and Qisda America Corp. (collectively, “Qisda”); BenQ Corp., BenQ America Corp., and BenQ Latin America Corp. (collectively, “BenQ”); AU Optronics Corp. and AU Optronics Corp. America (collectively, “AUO”); Realtek Semiconductor Corp. (“Realtek”); and MStar Semiconductor Inc. (“MStar”) (all collectively, the “Respondents”). Thomson accused the Respondents of infringing certain claims of the ‘063, ‘674, ‘556, ‘006, and ‘941 patents.
On January 12, 2012, ALJ Rogers issued an Initial Determination (“ID”) finding a violation of Section 337 with respect to the ‘674 patent. Specifically, the ALJ found that the CMI accused products including the Type 2 Array Circuitry and any Qisda or BenQ accused products incorporating these CMI accused products infringe the asserted claims of the ‘674 patent. No other accused products were found to infringe the ‘674 patent or the other patents at issue. ALJ Rogers also determined that the asserted claims of the ‘674, ‘556, and ‘941 patents are not invalid, but that certain claims of the ‘063 and ‘006 patents are invalid for obviousness and anticipation, respectively. See our January 17, 2012 post for more details.
On March 26, 2012, the Commission issued a notice determining to review the ID in part. On review, the Commission determined to reverse ALJ Rogers’ finding of a violation of Section 337 with respect to the ‘674 patent and affirm, with modifications, the findings of no violation of Section 337 with respect to the ‘006, ‘063, and ‘566 patents. The Commission also affirmed that Respondents do not infringe the asserted claims of the ‘941 patent, but remanded to the ALJ to decide whether the ViewFrame II+2 prior art anticipates the asserted claims. The Commission’s detailed findings are discussed below.
The ‘006 Patent
The Commission first analyzed the ALJ’s construction of the term “layer,” as used throughout the ‘006 patent, and construed the term to mean the “entire thickness of a material.” Under this construction, Thomson could not show that Respondents’ accused products have a single optical axis, as required by the asserted claims. Thus, the Commission affirmed the ALJ’s finding that the accused devices do not literally infringe the ‘006 patent. The Commission also determined that Thomson failed to show that the accused products infringe the ‘006 patent under the doctrine of equivalents.
As to validity, the Commission affirmed ALJ Rogers’ finding that Respondents failed to establish by clear and convincing evidence that a U.S. Patent to Scheuble anticipates claims 4 and 7. Both the ALJ and Commission determined that Scheuble does not disclose the “birefringent plate” limitation of the asserted claims.
The ‘063 Patent
The Commission reviewed the ALJ’s construction of the terms “mechanically rubbing/rubbed,” “a plurality of spacing elements,” and “affixing layer.” With respect to the term “mechanically rubbing/rubbed,” the Commission rejected the ALJ’s findings regarding claim differentiation and found that the proper construction of the term does not contain a directional limitation. As to the term “a plurality of spacing elements,” the Commission reversed the ALJ’s narrow and unsupported construction requiring the “plurality of spacing elements” to contact “the second substrate,” and adopted Thomson’s proposed construction of “more than one spacing element, where a spacing element is a structure that functions to keep the gap between two substrates substantially uniform.” Lastly, as to the term “affixing layer,” the Commission affirmed the ALJ’s construction with the caveat that the “affixing layer” need not be “separate,” only “distinct,” from the “spacing elements.”
Under the adopted constructions, the Commission affirmed the ALJ’s finding that the accused AUO and CMI products do not infringe claim 1 and that the accused CMI products do not infringe claim 11. However, the Commission reversed the ALJ’s finding that the accused AUO products do not infringe claim 11. The Commission also determined that claims 12, 14, 17, and 18, which depend from claim 11, were infringed by AUO’s accused products.
As to invalidity, the Commission affirmed the ALJ’s finding that claims 1-4, 8, 11, 12, 14, and 18 are obvious over a U.S. Patent to Sugata in view of a U.S. Patent to Tsuboyama. Specifically, the ALJ found that Sugata discloses each limitation of the asserted claims except mechanical rubbing of the substrate and spacers after the spacers have been formed, but that Tsuboyama teaches this limitation. The Commission reversed the ALJ’s finding that claim 17 of the ‘063 patent is not rendered obvious by the combination of Sugata and Tsuboyama after determining that the inherent teachings of the asserted references disclosed a photolithography process as claimed. The Commission also considered whether the asserted claims are anticipated by a U.S. Patent to Lowe or a U.S. Patent to Miyazaki. In doing so, the Commission affirmed the ALJ’s findings that Lowe and Miyazaki are prior art to claims 1-4 and 8 of the ‘063 patent, that Respondents have not shown that Lowe and Miyazaki are prior art to claims 11, 12, 14, 17, and 18, that neither Lowe nor Miyazaki anticipate claims 1-4 and 8, and that, even assuming Lowe and Miyazaki are prior art to claims 11, 12, 14, 17, and 18, only Miyazaki would anticipate those claims.
The ‘556 Patent
With respect to the ‘556 patent, the Commission determined not to review the ALJ’s finding that Respondents’ accused products do not infringe claim 3 and affirmed the ALJ’s finding that claim 3 is not obvious over a U.S. Patent to Takizawa, either alone or in combination with a U.S. Patent to Possin.
The ‘674 Patent
As to the ‘674 patent, the Commission determined not to review ALJ Rogers’ finding “that the asserted claims are infringed by the CMI accused product including the ‘Type 2 Array Circuitry’ and any Qisda or BenQ accused product incorporating these CMI accused products.” However, the Commission reversed the ALJ’s findings that claims 1, 7, 8, 14, 16, 17, and 18 are not anticipated by a Japanese Published Application to Fujitsu and that dependent claims 9, 11, and 13 are not obvious over Fujitsu in view of the level of ordinary skill in the art. Accordingly, the Commission determined that there is no violation of Section 337 with respect to the ‘674 patent.
The ‘941 Patent
Regarding claim construction, the Commission reviewed and adopted the ALJ’s construction of the term “second rate” “determined by.” Specifically, the Commission rejected Thomson’s construction that “determined by” should be construed broadly to mean “based on,” allowing for any conceivable equation to be used for calculating the “second rate,” because the specification of the ‘941 patent only disclosed a single way to calculate the claimed parameter. Accordingly, the Commission adopted the ALJ’s construction, which included the disclosed equation. Moreover, under either construction, the Commission determined that Respondents MStar and Realtek and Respondents CMU, Qisda, and BenQ, which manufacture products including MStar and Realtek scaler ships, do not infringe claims 1 and 4. The Commission also affirmed the ALJ’s finding that the asserted claims are not anticipated by a Japanese Patent Publication to Baba.
Regarding domestic industry, the Commission affirmed the ALJ’s determination that Thomson had satisfied the economic prong of the domestic industry requirement. First, the Commission determined, and Respondents did not dispute, that Thomson’s licensing activities relating to its LCD patent portfolio satisfied the exploitation requirement of Section 337(a)(3)(c). Second, the Commission determined that the money invested by Thomson in licensing the asserted patents is substantial because Thomson invested more resources in the five asserted patents than in its other LCD patents and because Thomson focused heavily on each of the asserted patents during licensing negotiations.