On March 26, 2012, Chief ALJ Charles E. Bullock issued Order No. 27 denying Respondent T-Tech Tattoo Device, Inc.’s (“T-Tech”) motion for summary determination that claims 1 and 19 of U.S. Patent No. 6,505,530 are invalid under 35 U.S.C. § 112 in Certain Ink Application Devices and Components Thereof and Methods of Using Same (Inv. No. 337-TA-832).
According to the Order, ALJ Bullock determined that T-Tech’s summary determination motion was procedurally improper for two reasons: (1) the deadline for such motions was March 20, 2013 and T-Tech’s motion was therefore filed out of time and did not establish good cause for the late filing, and (2) this was the third time T-Tech moved for summary determination of invalidity (after the first two attempts were denied). ALJ further determined that the ITC’s rules clearly state that affirmative defenses must be pled with as much specificity as possible, including the basis for any assertions of invalidity. Here, ALJ Bullock determined, “T-Tech has not only failed to plead the affirmative defense of invalidity with specificity, but has – in fact – failed to plead the defense at all.” (Emphasis in original). Because T-Tech did not plead its invalidity defense, ALJ Bullock determined that such defense was waived by T-Tech. Accordingly, ALJ Bullock concluded that “T-Tech may not introduce evidence or otherwise raise this affirmative defense in the Investigation, including at the upcoming evidentiary hearing and in post-hearing briefing.”