On August 14, 2013, Chief ALJ Charles E. Bullock issued the public version of Order No. 75 (dated August 5, 2013) denying Respondents’ motion for reconsideration or, in the alternative, for interlocutory review of Order No. 71 in Certain Wiper Blades (Inv. No. 337-TA-816).
By way of background, the investigation is based on a complaint filed by Robert Bosch LLC (“Bosch”) alleging violation of Section 337 in the importation and sale of certain “flat” or “beam-type” wiper blade devices that infringe one or more claims of the asserted patents. See our October 27, 2011 post for more details on Bosch’s complaint. As explained in our November 2, 2012 post, the Commission determined to review Order Nos. 51 and 52 and the claim constructions these orders turned upon. Further, the details of the Commission’s subsequent opinion reversing the ALJ’s initial determination can be found in our April 29, 2013 post.
On July 15, 2013, Respondents ADM21 Co., Ltd, ADM21 Co. (North America), Ltd., Cequent Consumer Products, Inc., RainEater LLC, Daewoo International Corp., Corea Autoparts Producing Corporation, CAP America, and PIAA Corporation USA’s (collectively, “Respondents”) moved for reconsideration of Order No. 71 or, alternatively, for interlocutory review of Order No. 71 under Commission Rule 210.24. Order No. 71 denied Respondents’ request to amend their Notice of Prior Art, and they contended that the denial was based upon errors of fact that, if left uncorrected, would subject Respondents to manifest injustice.
In particular, and contrary to the ALJ’s findings in Order No. 71, Respondents argued that they could not have known of the relevance of the additional prior art before the Commission issued its revised claim construction. Under the revised construction of the term “support element,” Respondents argued that the Trico wiper blade anticipates all of the asserted claims and, thus, it would be manifestly unjust for the ALJ to not reconsider its decision denying Respondents’ request to amend. Further, Respondents argued that they were not permitted access to the wiper blade until May 30, 2013, and it was not until measuring the blade did they realize the wiper blades relevance to their invalidity case.
In opposition, Bosch argued that Respondents were on notice of the Trico wiper blade since August 2012, and if the structure of the blade was not clear to Respondents based upon the photographs and drawings produced, that Bosch could have requested an inspection prior to May 30, 2013. Bosch also disputed Respondents’ assertion that measuring the blade was necessary to determine the blades relevance to the case. Further still, Bosch argued that Respondents cannot meet there burden for an interlocutory review because Order No. 71 does not involve a controlling question of law.
Having reviewed the submissions of the parties, ALJ Bullock determined to deny both forms of relief requested by Respondents. Regarding the request for reconsideration, the ALJ found that Respondents were simply attempting to submit new arguments that they could have presented in their original motion to supplement; whereas requests for reconsideration are generally confined to questions upon which the moving party had no previous opportunity to submit arguments. In particular, the ALJ found that Respondents could have raised arguments concerning the central relevance of the wiper blade’s dimensions in their notice to supplement, and cannot correct their failure to do so now via a request for reconsideration. With respect to the request for interlocutory review, ALJ Bullock agreed with Bosch that Order No. 71 does not involve “a controlling question of law or policy as to which there is a substantial ground for difference of opinion” and, therefore, denied the request.