On May 16, 2016, the ITC issued a notice of its decision to review an initial determination granting Respondents NRT Technology Corp. and NRT Technologies, Inc.’s (collectively, “NRT”) motion for summary determination of invalidity of the asserted claims of U.S. Patent No. 6,081,792 (“the ‘792 patent”) in Certain Automated Teller Machines and Point of Sale Devices and Associated Software Thereof (Inv. No. 337-TA-958), and on review, to affirm the initial determination.

By way of background, this investigation is based on a complaint filed by Global Cash Access, Inc. (now called Everi Payments Inc., or “Everi”) alleging violation of Section 337 by Respondents NRT Technology Corp. and NRT Technologies, Inc. (collectively, “NRT”) in the importation and sale of certain automated teller machines and point-of-sale devices and associated software that infringe one or more claims of the ‘792 patent. See our May 15, 2015 and June 4, 2015 posts for more details on the complaint and Notice of Investigation, respectively.

According to the notice, after conducting a Markman hearing on October 6, 2015, the ALJ construed the disputed claims in Order No. 15 and found the term “processor” indefinite. In particular, the ALJ determined that the ‘792 patent is ambiguous as to whether the claimed processor is a payment processor, a computer processor, or both. NRT moved for summary determination of invalidity of the asserted claims, supported by the Commission Investigative Staff. The ALJ granted the motion in Order No. 17. In its petition to the Commission, Everi did not argue any error in the ALJ’s determination of the level of ordinary skill in the art. The Commission found that NRT demonstrated by clear and convincing evidence that the claim language, when read in light of the specification and prosecution history, fails to inform those skilled in the art about the scope of the invention with reasonable certainty. The Commission noted that the intrinsic evidence shows that the term “processor” is not used in the ordinary sense in the computer arts in the ‘792 patent. Further, the Commission noted that to the extent extrinsic evidence is considered, the testimony of NRT’s expert witness is credible while the testimony of Everi’s expert witness is not.