ITC Docket Update: Three Initial Determinations of No Violation
The ITC has recently published three Final Initial Determinations in Section 337 investigations where the administrative law judge made a finding of no violation. All three determinations, which are still subject to review by the Commission, hinged on the weakness of the complainant’s intellectual property claims.
Bone Cements and Bone Cement Accessories (Inv. 1175)
This investigation is the second of two dueling trade secret complaints in a dispute between Germany-based Heraeus and U.S.-based Zimmer Biomet, competing producers of surgical bone cement. The Commission has already issued a Final Determination in the first case—Bone Cements, Components Thereof, and Products Containing the Same (Inv. 1153)—finding that although Zimmer Biomet had indeed misappropriated Heraeus’s bone cement formula, Heraeus nevertheless did not operate an industry in the United States.
Now an Initial Determination in the second case has also found no violation by Heraeus. The ALJ determined that Heraeus did not misappropriate Zimmer Biomet’s trade secrets related to pricing plans (or engage in false advertising and tortious interference), and that Zimmer Biomet’s domestic industry was in any event not injured by the accused imports.
Collapsible and Portable Furniture (Inv. 1178)
The finding of no violation in this case was the result of the ALJ’s claim constructions. The accused products are folding camping chairs that rock back and forth, and in an early submission, one of the respondents provided prior art references from the 1800s.
The Final Initial Determination did not, however, find the patent claims invalid as obvious. Instead, the ALJ narrowly construed key terms in the claims, so that one of the two asserted patents was not infringed and the other was not even practiced by the complainant’s own product, thus failing to satisfy the technical prong of the domestic industry test.
Wearable Monitoring Devices, Systems, and Components Thereof (Inv. 1190)
In this case, Koninklijke Philips—a Dutch company in the medical device and patent-licensing business—sought to block imports of smartwatches by Fitbit and Garmin. The Final Initial Determination found no violation of Section 337 because the asserted patent claims are directed to abstract ideas with no inventive contribution and thus ineligible for patent protection under 35 U.S.C. §101 and the Supreme Court’s Alice decision.
One of the patents describes an “activity monitor . . . operable to monitor and process the sensor signals discontinuously.” As the ALJ explained:
The idea is to lower consumption of energy by programming the operating parts of an activity monitory monitor to operate discontinuously in time rather than being constantly “on.” As argued by Respondents, this is “a timeworn, abstract idea to save power, energy, or resources by doing something discontinuously instead of continuously,” and the patent describes no new or inventive process for achieving this abstract goal.
The other patent describes a method for “monitoring, with a processor, an output signal from an accelerometer . . . determining, with the processor, that the output signal is within a predetermined range . . . and recording in a memory device the monitored plurality of readings.” According to the ALJ, this merely describes the abstract idea of “minimizing movement to record data more accurately.”
The idea is no different than a photographer pressing the shutter release during a pause between inhalation and exhalation. By timing the shutter release to coincide with the pause, the photographer reduces movement of the camera (sensor) to capture a better image (data).
. . .
Philips does not claim to have invented sensors, processors, accelerometers, or any other electronic devices that make transdermal monitoring possible. It describes no innovative arrangement of the existing technology that transforms their abstract idea into a patentable invention.
