Docket Update: Youth Vaping, Tortious Interference, Data Tapes, and Qualcomm
On youth vaping and the public interest
In its October 3 complaint (Electronic Nicotine Delivery Systems), Juul dedicated a large portion of its public interest arguments to the claim that proposed respondents were—unlike Juul—irresponsibly marketing e-cigarettes to minors. Now two of the proposed respondents, Myle Vape and Eonsmoke, have submitted their own statements on the public interest accusing Juul of the same thing. According to Eonsmoke, Juul has been “a pioneer in attracting youth to electronic cigarettes.”
Both respondents have asked the ITC to delay institution of the investigation in light of an FDA investigation looking into the the activities of numerous companies, including Juul and respondents, related to youth vaping. Considering that Juul’s complaint offers a fairly straightforward allegation of patent infringement, I think it’s unlikely the FDA investigation or related controversy will have any impact on the ITC’s analysis or proceedings.
Final Initial Determinations
In Road Milling Machines (Inv. 1067), the ALJ found a violation of Section 337 in Wirtgen’s complaint against Caterpillar for two of the four asserted patents. Both parties have petitioned the Commission to review the determination. A public version of the Final ID is not yet available, but the parties’ petitions reveal that one patent was found invalid and another not to have been infringed.
In Industrial Automation Systems (Inv. 1074), the ALJ found a violation of Section 337 by numerous defaulting respondents. That investigation involved a number of non-patent claims made by Rockwell, including trademark infringement, copyright infringement, and tortious interference related to the importation of “gray market” goods. According to a notice released on October 23, the Final ID found a violation did occur with regard to the trademark claims but not for copyright infringement or tortious interference. With regard to the tortious interference claim, the notice states that Rockwell failed to show “substantial injury to a domestic industry” as required for Section 337 complaints involving unfair methods of competition other than infringement of a statutory intellectual property right.
On October 24, a Final ID was issued in Magnetic Data Storage (Inv. 1076) finding a violation of Section 337 in Fujifilm’s complaint against Sony. Details of the determination are not yet publicly available. This investigation is only two months behind Magnetic Tape Cartridges (Inv. 1058), in which a Final ID was issued in August finding a violation of Section 337 in Sony’s complaint against Fujifilm.
On October 24, a Final ID was issued in Magnetic Data Storage (Inv. 1076) finding a violation of Section 337 in Fujifilm’s complaint against Sony. Details of the determination are not yet publicly available. This investigation is only two months behind Magnetic Tape Cartridges (Inv. 1058), in which a Final ID was issued in August finding a violation of Section 337 in Sony’s complaint against Fujifilm. The 1058 determination relied on a peculiar theory of domestic industry (discussed in a previous post) and is currently under review by the Commission.
If the Commission approves both initial determinations, it could result in exclusion orders against both companies’ data storage tapes. It’s exceedingly likely, however, that the companies will reach a settlement before that happens.
Qualcomm v. Apple progressing
The ITC is still investigating two separate complaints by Qualcomm against Apple. On September 28, ALJ Pender issued a Final ID in Mobile Electronic Devices (Inv. 1065) finding that Apple infringed one of three asserted patents but recommending against an exclusion order on public interest grounds. That determination and recommendation is now being review by the Commission, and the parties (including ITC staff) have finished submitting their briefs. Also in late September, ALJ McNamara held a hearing in Mobile Electronic Devices (Inv. 1093)—involving different patents but the same products (iPhone’s with Intel chips) as the 1065 investigation. ALJ McNamara is scheduled to issue her own Final ID by January 22, which is six days before the due date for the Commission’s 1065 decision.