On September 21, 2016, in Certain Portable Electronic Devices and Components Thereof, Inv. No. 337-TA-994, the Commission determined not to review Judge Shaw’s initial determination (“ID”) that the asserted patent, U.S. Patent Number 6,928,433, is directed to ineligible subject matter under 35 U.S.C. § 101. Judge Shaw’s determination was made pursuant to the Commission’s 100-day pilot program for early determination of case dispositive issues.

The 100-Day Pilot Program

The pilot program, which is pending codification pursuant to a notice of proposed rulemaking issued in September 2015, provides for the early adjudication of potentially case-dispositive issues. Currently, the process is initiated by the Commission in the notice of investigation. The Commission proposed broadening the pilot program in its notice of proposed rulemaking by allowing administrative law judges to institute proceedings for early determination of dispositive issues. Pursuant to the Commission’s notice of investigation, the ALJ issues a procedural schedule including expedited fact finding and an evidentiary hearing. Ordinarily, the hearing will result in an ID within 100 days of the institution of the investigation. Parties may then petition the Commission for review of the ID within five days of service of the ID.

The Case

The ITC instituted the investigation to determine whether there is a violation of Section 337 with respect to the importation of portable electronic devices that allegedly infringe U.S. Patent No. 6,928,433 (“’433 Patent”) which relates to a user interface for accessing content on a portable media player.

During the Commission’s review of the complaint, certain of the proposed respondents requested that the ITC institute the pilot program, arguing that the ‘433 Patent is drawn to ineligible subject matter in light of the United States Supreme Court’s holding in Alice Corp. Pty. v. CLS Bank Int’l, 134 S. Ct. 2347 (2014). Specifically, the proposed respondents alleged that the ‘433 Patent claims the abstract idea of selecting content, organized in a hierarchy of categories and subcategories, using generic computer technology. In response to those requests, the ITC instructed Judge Shaw to hold an early evidentiary hearing, find facts, and issue an early decision as to whether the asserted claims of the ‘433 Patent recite patent-eligible subject matter under 35 U.S.C. § 101.

In his ID, Judge Shaw held that the asserted claims are invalid as they are directed to “the abstract and well-known idea of a hierarchically navigated user interface.” Judge Shaw added that “there is no indication that the inventors went beyond anything routine and ordinary in claiming the application of known organizational methods to the standard functions of portable music players and similar devices.” The Commission has determined not to review Judge Shaw’s ID and has terminated the investigation


Like a number of district courts post-Alice, the ITC appears to be willing to consider early challenges to patent eligibility under Section 101. As this case illustrates, claims covering “abstract” ideas are in danger of being more readily invalidated at the ITC early in the investigation.