On April 6, 2017, Chief ALJ Charles E. Bullock issued Order No. 43 in Certain Mobile and Portable Electronic Devices Incorporating Haptics (Including Smartphones and Laptops) and Components Thereof (337-TA-1004/990).

By way of background, the 337-TA-990 Investigation was instituted based on a complaint filed by Immersion Corp. (“Immersion”) alleging violation of Section 337 by Apple Inc. (“Apple”), AT&T Inc. (“AT&T”), and AT&T Mobility LLC (“AT&T Mobility”) in the importation into the U.S. and sale of certain mobile electronic devices incorporating haptics (including smartphones and smartwatches) and components thereof that infringe one or more claims of U.S. Patent Nos. 8,773,356; 8,619,051; and 8,659,571. See our February 11, 2016 and March 25, 2016 posts for more details on the complaint and Notice of Investigation, respectively.

The 337-TA-1004 Investigation was instituted on June 6, 2016 based on a complaint filed by Immersion alleging violation of Section 337 by Apple and AT&T Mobility in the importation into the U.S. and sale of certain mobile and portable electronic devices incorporating haptics (including smartphones and laptops) and components thereof that infringe one or more claims of U.S. Patent Nos. 8,749,504; 7,808,488; 7,336,260 (the '260 patent); and 8,581,710. See our May 6, 2016 and June 10, 2016 posts for more details on the complaint and Notice of Investigation, respectively.

These investigations were consolidated to conserve the resources of the parties and the Commission given the overlap of parties, technology, patented subject matter, and legal issues. See our June 14, 2016 post for more details.

According to the order, Apple asserted that the ‘260 patent claims recite “nothing more than the abstract process of detecting pressures and then providing tactile sensations in response to an ‘input device.’” Apple argued that this is not patentable subject matter under Alice because it is something humans have been doing for centuries when they shake hands. More specifically, Apple argued that the ‘260 patent is not patentable under the first test of Alice because it is an abstract idea, emphasizing the two primary steps in the claims are simply detecting pressure and providing a tactile sensation, equivalent to data gathering and analysis. Apple argued that the claims also fail to meet the second part of the Alice test because there is nothing new about providing vibratory feedback in the form of tactile sensations based on a user’s input.

The Commission Investigative Staff (“OUII”) supported Apple’s motion for summary determination, arguing that the claims are too abstract and too broad to be patentable and do not reflect an inventive step.

Immersion argued that the motion should be denied because the claims are directed to a computer implemented process which reflects an improvement in computer functionality itself. Immersion also argued that the claims are not directed to an abstract idea, but rather, an improvement in the functioning of a pressure-sensitive system.

ALJ Bullock denied the motion, determining that the ‘260 patent covers patentable subject matter under the first step in Alice, noting that the apparatus described by the patent includes a detailed input device for communicating with a user capable of resolving multiple levels of pressure, and that the apparatus also includes hardware with associated logic to detect pressure and provide sensations based on the pressures, as well as processors. The ALJ characterized the ‘260 patent as an improvement in computer technology rather than an abstract idea, and thus Apple’s motion for summary determination that the claims of the ‘260 patent do not recite patentable subject matter and are invalid under 35 U.S.C. § 101 was denied.