ITC Patent Docket Update: Third-Party Discovery Selectively Relied on to Deny Early Disposition Request, also Robots
Early Disposition Denial
The ITC instituted Automated Storage and Retrieval Systems, Robots, and Components Thereof (Inv. 1228) on November 2 based on a complaint from Norway-based AutoStore alleging that UK-based Ocado imported infringing robots for use by grocery stores. Noting that AutoStore’s complaint refers vaguely to the investments of “partners” in the United States, Ocado requested early disposition on whether AutoStore actually satisfies the domestic industry requirement of Section 337.
That request was denied. According to the Commission in the denial order: “The issues raised for resolution appear likely to require significant third-party discovery and thus may be too unwieldy to be decided within 100 days of institution.”
By citing “significant third-party discovery” as the reason for numerous early disposition request denials this year, the ITC has appeared to be creating a loophole in the program for nonpracticing entities using domestic-industry-by-subpoena arguments. However, the agency also recently agreed to designate Active Matrix OLED (Inv. 1225) for early disposition, prompting complainant Solas OLED (a foreign licensing company relying on a single domestic licensee) to immediately withdraw its complaint.
There may be important differences between these cases guiding their decision, but the need for third party discovery is clearly not the only factor. We would have a better idea of what factors are really coming into play if the agency provided a more comprehensive and frank explanation when denying a particularly request.
On November 13, the ITC received a new Section 337 complaint from Amtech Systems titled Radio Frequency Identification (“RFID”) Products and Components Thereof. Amtech makes toll tags and devices for reading them and is a subsidiary of TransCore, a U.S.-based toll road management company. The complaint alleges infringement of six patents by Austria-based Kapsch TrafficCom, TransCore’s largest competitor. The dispute is also being litigated in federal district court.
The ITC terminated Blowers and Components Thereof (Inv. 1217) on November 12. The accused products were water heater parts made abroad by U.S.-based East West Manufacturing and sold to domestic water heater manufacturers. Shortly after the ITC complaint and its district court counterpart were filed in July by Regal Beloit, the respondent signaled it would accept a Consent Order, agreeing to halt all importation of the accused products.