In the Initial Determination in Certain Consumer Electronics With Display And Processing Capabilities, Inv. No. 337-TA-884, Administrative Law Judge James Gildea found that Complainant, Graphics Property Holdings, Inc. (“GPH”), had shown the existence of domestic industry-economic prong based solely on licensing activities associated with the asserted patents. Judge Gildea earlier denied GPH’s motion for summary determination on domestic industry-economic prong under section 337(a)(3)(C) because genuine issues of material fact existed with respect to GPH’s licensing-based domestic industry. GPH apparently corrected these errors at trial. According to Judge Gildea, GPH’s domestic industry was based on expenses incurred for the retention of an outside patent monetization consulting firm, the salience of the asserted patents in the licensed portfolio, and GPH’s internal expenses, among other things. With respect to the role of litigation expenses in the complainant’s domestic industry calculation, Judge Gildea distinguished the Federal Circuit’s decision in John Mezzalingua Assoc’s v. Int’l Trade Comm’n, 660 F.3d 1322, 1328 (Fed. Cir. 2011), which held that “expenditures on patent litigation do not automatically constitute evidence of the existence of an industry in the United States established by substantial investment in the exploitation of a patent.” According to Judge Gildea, “[l]icensing activity may be preceded by demand letters, followed perhaps by negotiations and ultimately a license, or perhaps by litigation followed by a license. Litigation costs may be significant and integral to a licensing program because, unlike other commercial products, patents are not understood or appreciated either in terms of their utility or their value.”
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ALJ Gildea finds domestic industry in -844 investigation based solely on patent licensing
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