On August 14, 2014, the International Trade Commission ("the Commission") issued a notice determining to review ALJ Theodore R. Essex's Initial Determination ("ID") finding no violation of Section 337 in Certain Wireless Devices With 3G And/Or 4G Capabilities and Components Thereof (Inv. 337-TA-868).

By way of background, the investigation in this matter is based on a January 2, 2013 complaint filed by InterDigital Communications, Inc., InterDigital Technology Corporation, IPR Licensing, Inc., and InterDigital Holdings, Inc. (collectively, "InterDigital") alleging violation of Section 337 in the importation into the U.S. and sale of certain wireless devices with 3G and/or 4G capabilities and components thereof.  See our January 3, 2013 and February 1, 2013 posts for more details on the Complaint and Notice of Investigation, respectively. ALJ Essex issued his final ID on June 13, 2014, finding no violation of Section 337 as to U.S. Patent Nos. 7,190,966 (the '966 patent) and 7,286,847 (the '847 patent) (collectively, the "Power Ramp-Up Patents"), and U.S. Patent No. 7,941 ,151 (the '151 patent). InterDigital asserted claims 1, 3, 6, 8, and 9 of the '966 patent, claims 3 and 5 of the '847 patent, and independent claims 1 and 16 and dependent claims 2–6, 8–9, 17–21 and 23–24 of the '151 patent.   

According to the Notice, the Commission determined not to review the ID's findings that, based upon the construction of "successively transmitted signals"/"successively transmits signals," the accused products do not infringe, and the domestic industry products do not practice, the asserted patent claims of the Power Ramp-Up Patents. The Commission further determined not to review the ID's finding that claim 3 of the '847 patent is not invalid for lack of adequate written description. Thus, according to the notice, the Commission found no violation of Section 337 as to the asserted claims of the Power Ramp-Up Patents.

Regarding the '151 patent, the Commission determined not to review the ID's findings that the accused products do not infringe, and the domestic industry products do not practice, the "same physical downlink control channel" limitation in independent claims 1 and 16. Furthermore, the Commission determined not to review the final ID's determination that claim 16 of the '151 patent is invalid for indefiniteness. Accordingly, the Commission found no violation of Section 337 with respect to the asserted claims of the '151 patent, namely independent claims 1 and 16, and asserted claims dependent upon them. However, the Commission determined to review the ID's construction of "and to" in claim 16 of the '151 patent and found that the term is to be afforded its plain and ordinary meaning. In view of the Commission's new claim construction, the Commission reversed the ID's finding of no infringement of asserted claims 16–21 and 23–24. Additionally, the Commission determined to review the ID's infringement analysis of "and if so" for claim 1 and on review took no position whether the accused products practice the determining steps in sequence as required for asserted claims 1–6 and 8–9.

Regarding the remaining domestic industry and FRAND issues, the Commission reviewed but took no positions on the issues because efficient use of administrative, judicial, and private resources warrants waiting until final disposition of the pending appeal in InterDigital Communications LLC v. ITC, No. 2014-1176 (Fed. Cir.) which involves many of the same parties and issues with regard to related patents.