[Federal Register Volume 78, Number 181 (Wednesday, September 18, 2013)]
[Notices]
[Pages 57414-57415]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-22643]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-770]


Certain Video Game Systems and Wireless Controllers and 
Components Thereof, Commission Determination Finding No Violation of 
the Tariff Act of 1930

AGENCY: U.S. International Trade Commission.

ACTION: Notice.

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SUMMARY: Notice is hereby given that the U.S. International Trade 
Commission has determined to affirm, with modifications, the ALJ's 
finding of no violation of Section 337 of the Tariff Act of 1930, 19 
U.S.C. 1337 (``Section 337'') in the above-referenced investigation.

FOR FURTHER INFORMATION CONTACT: Jia Chen, Office of the General 
Counsel, U.S. International Trade Commission, 500 E Street SW., 
Washington, DC 20436, telephone (202) 708-4737. Copies of non-
confidential documents filed in connection with this investigation are 
or will be available for inspection during official business hours 
(8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. 
International Trade Commission, 500 E Street SW., Washington, DC 20436, 
telephone (202) 205-2000. General information concerning the Commission 
may also be obtained by accessing its Internet server at http://www.usitc.gov. The public record for this investigation may be viewed 
on the Commission's electronic docket (EDIS) at http://edis.usitc.gov. 
Hearing-impaired persons are advised that information on this matter 
can be obtained by contacting the Commission's TDD terminal on (202) 
205-1810.

SUPPLEMENTARY INFORMATION: On April 27, 2011, the Commission instituted 
the subject investigation based on a complaint filed by Creative 
Kingdoms, LLC of Wakefield, Rhode Island and New Kingdoms, LLC of 
Nehalem, Oregon (collectively, ``CK''). 76 FR 23624 (Apr. 27, 2011). 
The complaint alleged violations of Section 337 by reason of 
infringement of certain claims of U.S. Patent Nos. 7,500,917 (``the 
'917 patent''), 7,896,742 (``the '742 patent''), 7,850,527 (``the '527 
patent''), and 6,761,637 (the '637 patent). The named respondents are 
Nintendo Co., Ltd., of Kyoto, Japan and Nintendo America, Inc. of 
Redmond, Washington (collectively, ``Nintendo''). The '637 patent was 
subsequently terminated from the investigation. On August 31, 2012, the 
ALJ issued a final ID finding no violation of section 337 by Nintendo. 
The ALJ found that the accused products infringe sole asserted claim 24 
of the '742 patent, but that the claim is invalid for failing to 
satisfy the enablement requirement and the written description 
requirement under 35 U.S.C. 112. The ALJ found that no accused products 
infringe the asserted claims of the '917 patent and the '527 patent. 
The ALJ also found that the asserted claims of the '917 and '527 
patents are invalid for failing to satisfy the enablement requirement 
and the written description requirement. The ALJ concluded that 
complainant has failed to show that a domestic industry exists in the 
United States that exploits the asserted patents as required by 19 
U.S.C. 1337(a)(2). The ALJ did not make a finding regarding the 
technical prong of the domestic industry requirement with respect to 
the asserted patents. The ALJ also did not making a finding with 
respect to anticipation and obviousness of the asserted patents.
    On November 6, 2012, the Commission determined to review the 
following issues: (1) Claim construction of the limitation ``toy wand'' 
of the asserted claim of the '917 patent; (2) non-infringement of the 
asserted claim of the '917 patent; (3) infringement of the asserted 
claim of the '742 patent; (4) validity of the asserted claims of the 
'917 and '742 patent under the enablement requirement; (5) validity of 
the asserted claims of the '917 and '742 patent under the written 
description requirement; and (6) whether the domestic industry 
requirement is met with respect to the '917 and '742 patents. On the 
same day, the Commission issued an opinion with respect to the proper 
claim construction of the term ``toy wand'' of the asserted claim of 
the '917 patent. The Commission determined to remand this case to the 
ALJ to determine the following issues: (a) Direct infringement of the 
asserted claim of the '917 patent in light of the proper construction 
of the term ``wand'' as set forth in the Commission opinion; (b) 
whether the

[[Page 57415]]

independently sold Wii MotionPlus and Nunchuck accessories 
contributorily infringe the asserted claim of the '917 and '742 
patents; (c) anticipation and obviousness with respect to the asserted 
claim of the '917 patent; (d) obviousness with respect to the asserted 
claim of the '742 patent; and (e) whether CK has satisfied the 
technical prong of the domestic industry requirement with respect to 
the '917 and '742 patents, and if necessary, whether CK has satisfied 
the economic prong of the domestic industry requirement with respect to 
the '917 and 742 patent in light of the ALJ's technical prong 
determination.
    On May 7, 2013, the ALJ issued a remand ID finding no violation of 
section 337. The ALJ found that (i) Respondents do not infringe claim 7 
of the '917 patent; (ii) respondents do not contribute to the 
infringement of claim 24 of the '742 patent; (iii) the asserted claim 
of the '917 patent is not invalid for anticipation; (iv) the asserted 
claim of the '917 patent is not invalid for obviousness; (v) the 
asserted claim of the '742 patent is not invalid for obviousness; (vi) 
complainant has satisfied the technical prong of the domestic industry 
requirement for the '917 patent; and (vii) complainant has satisfied 
the technical prong of the domestic industry requirement for the '742 
patent. The ALJ determined that it was unnecessary to revisit his 
previous finding in his final ID that complainant has not satisfied the 
economic prong of the domestic industry requirement for the '742 and 
'917 patents.
    On July 8, 2013, the Commission determined to review the following 
issues from the remand ID: (1) Whether the accused products directly 
infringe the asserted claim of the '917 patent; (2) whether the 
independently sold Wii MotionPlus and Nunchuck accessories 
contributorily infringe the asserted claim of the '742 patent; (3) non-
obviousness of the asserted claim of the '742 patent; and (4) whether 
the technical prong of the domestic industry requirement is met with 
respect to the '917 and '742 patents. The Commission noted that the 
following issues from the final ID are currently under review: (a) 
Whether the accused products directly infringe the asserted claim of 
the '742 patent; (b) validity of the asserted claims of the '917 and 
'742 patent under the enablement requirement; (c) validity of the 
asserted claims of the '917 and '742 patent under the written 
description requirement; and (d) whether the economic prong of the 
domestic industry requirement is met with respect to the '917 and '742 
patents.
    Having examined the record of this investigation, including the 
ALJ's final ID, remand ID, and the submissions of the parties, the 
Commission has 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.
    The authority for the Commission's determination is contained in 
section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and 
in sections 210.42-46 and 210.50 of the Commission's Rules of Practice 
and Procedure (19 CFR 210.42-46 and 210.50).

    By order of the Commission.
    Issued: September 12, 2013.
Lisa R. Barton,
Acting Secretary to the Commission.
[FR Doc. 2013-22643 Filed 9-17-13; 8:45 am]
BILLING CODE 7020-02-P