Complainant submitted one heck of a petition to review Judge MacNamara’s Final Initial Determination. Basically they stated Judge MacNamara committed an “egregious legal error”, “legal error”. Quite interesting if the Commissioners and Chairman with side with the apparent “judicial interpretation” of one of their own or the unambiguous independent jurisprudence. Maybe hire an investigator to see where the “donations” have gone. Just kidding. IMO
“Complainant INVT seeks reversal of the ALJ’s Initial Determination (“ID”) on essentiality, infringement, and the technical prong of domestic industry. For each Asserted Patent, the parties agree: essentiality, infringement, and the technical prong rise and fall together. As such, correcting the ALJ’s errors on essentiality will also correct the ALJ’s resultant errors on infringement and the technical prong.
The most egregious legal error is the ALJ’s failure to address one of INVT’s two 3G essentiality (and corresponding infringement) theories for the ’590 patent. INVT consistently advanced two theories of 3G essentiality for the ’590 patent. Yet the ALJ addressed only one, rejecting it based on a claim construction provided for the first time in the ID, for which INVT seeks review and reversal. The ID is completely silent on INVT’s second essentiality theory. INVT repeatedly raised, argued, proved, and briefed this second theory, which included pointing out that under any claim construction the 3G coding matrix’s 5-bit repetition renders the ’590 patent standard essential and infringed. Failing to address INVT’s 3G argument violates both the APA and the ITC’s own rules, which require that an ID address all “material” issues in dispute.
Beyond that, the ID is flawed because it improperly construes multiple claim terms across
the three asserted patents and applies an incorrect legal standard for “essentiality” in analyzing
the ’439 patent. Accordingly, INVT respectfully asks that the Commission find each of the three
asserted patents essential and infringed, and that the technical prong of domestic industry is
satisfied. The Commission may then remand for the ALJ to address any remaining issues.”
