On August 28, 2012, ALJ Robert K. Rogers, Jr. issued Order No. 27 in Certain Light-Emitting Diodes and Products Containing Same (Inv. No. 337-TA-802).  In the Order, ALJ Rogers denied Complainants LG Electronics, Inc. and LG Innotek Co. Ltd.’s (collectively, “LG”) unopposed motion to partially terminate the investigation with respect to claim 40 of U.S. Patent No. 7,884,388.

According to the Order, LG sought to withdraw its allegations of infringement of claim 40; however, LG would continue to rely on claim 40 to demonstrate the existence of a domestic industry.  In denying the motion, ALJ Rogers observed that (1) LG already waived any allegations of infringement of claim 40, as it did not address infringement of claim 40 in its pre-trial brief; and (2) LG would not be harmed by denial of its motion because evidence regarding the validity of claim 40 is relevant and material to the issue of domestic industry (quoting Certain Ground Fault Circuit Interrupters and Products Containing Same, Inv. No. 337-TA-739, Comm’n Op. (June 8, 2012) (“It is sufficient to show that the products practice any valid claim of the asserted patent, not necessarily an asserted claim of that patent.”)).