On November 6, 2012, the International Trade Commission (the “Commission”) issued an opinion in Certain Video Game Systems and Wireless Controllers and Components Thereof (337-TA-770) construing the term “toy wand” and remanding the case to Chief ALJ Charles E. Bullock to determine infringement in light of the Commission’s construction.  On the same day, the Commission also issued a notice determining to remand and review in part ALJ Bullock’s August 31, 2012 initial determination (“ID”), which found no violation of Section 337 by the Respondents in this investigation.  See our November 8, 2012 post for more details regarding the notice.

By way of background, this investigation was instituted on April 20, 2011 based on a complaint filed by Creative Kingdoms, LLC and New Kingdoms, LLC (collectively, “CK”) alleging a violation of Section 337 by Respondents Nintendo of America, Inc. and Nintendo Co., Ltd. (collectively, “Nintendo”) for the importation into the U.S. and sale of certain video game systems and wireless controllers and components thereof including Nintendo’s Wii wireless game system and controllers.  CK alleged that Nintendo violated Section 337 with respect to U.S. Patent Nos. 7,850,527 (the ‘527 patent), 7,500,917 (the ‘917 patent), and 7,896,742 (the ‘742 patent).

The ‘917 patent is directed to a toy wand that allows users to electronically interact with a physical or computer environment by moving the wand in a particular direction and “comprises an elongated hollow pipe or tube having a handle on one end and an activation circuitry and transmitter located within the body on the other end.”  The ALJ construed the term “wand” as “an elongated hollow pipe or tube consistent with a wand associated with magic or illusion,” as proposed by the Commission Investigative Attorney and Nintendo.  The ALJ rejected CK’s broader construction of “a handheld electronic device with an elongated body,” because the specification repeatedly emphasized that the claimed wand is “seemingly magical,” or associated with magic or illusion.  In its petition for review, CK argued that the references in the specification to the wand being “seemingly magical” are descriptions of the preferred embodiment and are not intended to limit the claims to a single embodiment.

Upon review, the Commission agreed with CK and construed the term “toy wand” to mean “an elongated hollow pipe or tube used for play.”  Although the Commission acknowledged that the ‘917 patent includes numerous descriptions of a “magical” wand used in an interactive wizardry game, the Commission found that the patent also envisions other types of wands including wands implemented as an input device for an array of variously themed video and computer games.  Accordingly, the Commission determined that there was not a clear case of subject matter disclaimer warranting a construction that limited the scope of “toy wand” to magic wands.