On September 12, 2013, the International Trade Commission (the “ITC” or the “Commission”) issued a notice in Certain Video Game Systems and Wireless Controllers and Components Thereof (337-TA-770). In the notice, the Commission determined to affirm, with modifications the ALJ’s finding of no violation of Section 337.

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). See our March 23, 2011 and April 21, 2011 posts for more details on the complaint and notice of investigation, respectively.

On August 31, 2012, ALJ Bullock issued an initial determination (“ID”) finding no violation of Section 337 by Nintendo in this investigation with respect to the patents-at-issue. See our October 12, 2012 post for more details. On November 6, 2012, the Commission issued a notice indicating that the Commission revised the claim construction of “toy wand,” and in light of this construction, remanded the case to ALJ Bullock to determine infringement, validity, and domestic industry of the ‘917 and ‘742 patents. See our November 8, 2012 and November 12, 2012 posts for more information about the Commission’s prior notice and opinion.

ALJ Bullock determined on remand that Nintendo does not infringe claim 7 of the ‘917 patent and does not contributorily infringe claim 24 of the ‘742 patent. The ALJ also held that claim 7 of the ‘917 patent is neither anticipated not obvious, and that claim 24 of the ‘742 patent is not obvious. Further, ALJ Bullock held that the technical prong of the domestic industry requirement is satisfied for both patents (although he previously determined that the economic prong was not met). See our May 19, 2013 post for more details on the remand determination. Only July 8, 2013, the Commission determined to review certain issues in the remand determination. See our July 10, 2013 post for more details.

According to the September 12, 2013 notice, the Commission determined:

to affirm, with modifications, the ALJ’s finding of no violation of Section 337. Specifically, the Commission has determined to affirm, with modifications, the ALJ’s finding that claim 7 of the ‘917 patent and claim 24 of the ‘742 patent are invalid for lack of enablement and for lack of written description, and that complainant has not shown that the domestic industry requirement is met with respect to the ‘917 and ‘742 patents. The Commission has determined that complainant has not shown that the accused products directly infringe claim 7 of the ‘917 patent because they do not meet the limitation “command,” and that complainant has not shown that the accused products directly infringe claim 24 of the ‘742 patent because they do not meet the limitation “activate or control.” The Commission has also determined that complainant has not shown that the independently sold Wii MotionPlus and Nunchuck accessories contributorily infringe claim 24 of the ‘742 patent. Lastly, the Commission has determined that respondent has not shown that claim 24 of the ‘742 patent is obvious.