On September 7, 2012, the International Trade Commission (“the Commission”) issued a notice of its decision to review in part the initial determination (“ID”) finding a violation of Section 337 in Certain Light-Emitting Diodes and Products Containing the Same (Inv. No. 337-TA-784).

By way of background, the Commission instituted this investigation based on a complaint filed by OSRAM GmbH (“OSRAM”) on June 3, 2011 alleging that LG Electronics, LG Innotek Co., Ltd., LG Electronics U.S.A., Inc., and LG Innotek U.S.A., Inc. (collectively, “LG”) unlawfully imported, sold for importation, and sold after importation certain light-emitting diodes and products containing same that infringe various patents.  See our July 7, 2011 post for more details.

As summarized in our July 12, 2012 post, ALJ Shaw issued an ID finding that there has been a violation of Section 337 by LG in this investigation by reason of infringement of certain valid claims of U.S. Patent No. 7,151,283.  ALJ Shaw further held that LG’s accused products did not infringe U.S. Patent No. 7,271,425, and that the domestic industry requirement was satisfied by OSRAM with respect to all asserted patents.

After reviewing the parties’ filings, the Commission determined to review the ALJ’s finding that OSRAM met the economic prong of the domestic industry requirement with respect to both asserted patents.  With respect to the ‘283 patent, the Commission determined to review:  (1) the ALJ’s finding that claims 1, 3, 4, 6, 8, 22, 24-26, 29 and 32-34 are not rendered obvious in view of certain prior art references; (2) the ALJ’s finding that claim 34 is not rendered obvious in view of certain prior art references; and (3) the ALJ’s finding that claim 34 is not rendered obvious in view of certain prior art references.  The Commission declined to review any other issues in the ID.

The parties are requested to brief their positions on three questions listed in the notice related to the economic prong of the domestic industry requirement, as well as three questions listed in the notice related to whether the prior art teaches a “partial conversion” of light and the motivation to combine same.  The notice also requests briefing on the ALJ’s recommendations on remedy and bonding.

Written submissions are due by September 21, 2012, with reply submissions due by September 28, 2012.