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The latest in Canon’s USITC investigation

March 13, 2019

Two new sets of legal documents have been filed as part of USITC Investigation No. 337-TA-1106.

These documents, viewed by The Recycler, consist of a Joint Submission Regarding Pending Motions for Summary Determination and Request to Suspend the Procedural Schedule; and Canon’s Response to Ninestar’s Contingent Motion for Summary Determination of Noninfringement under Certain Claim Constructions.

The first document, the joint submission, was filed by the complainants and the “participating respondents” in the investigation, as well as the Office of Unfair Import Investigations. It follows a stipulation made by Canon and the respondents on 27 September 2018 that “the controlling claim construction ruling makes clear that at least one disputed term of every claim asserted against the [Type A-H] Products requires the claimed coupling member to be capable of pivoting or inclining with respect to the photosensitive drum, then the [Type A-H] Products would not infringe any of the claims asserted against them under that construction.”

It also follows the recent Markman order, issued by ALJ Dee Lord on 28 February 2019, which construes the term ““wherein the coupling member is movable between (i) a first position in which a tip of the at least one projection is a first distance away from the photosensitive drum as measured in the direction of the axis Ll and (ii) a second position in which the tip of the at least one projection is a second distance away from the photosensitive drum as measured in the direction of the axis Ll” recited in claims 1 and 6 of the ’826 patent, claims 1 and 8 of the ’021 patent, claims 1 and 27 of the ’729 patent, claims 7 and 20 of the ’764 patent, claims 1 and 13 of the ’765 patent, claim 1 of the ’960 patent, and claim 1 of the ’846 patent to require a coupling member that is “movable between (i) a first angular position in which a tip of the at least one projection is a first distance away from the photosensitive drum as measured in the direction of the axis L1 and (ii) a second angular position in which the tip of the at least one projection is a second distance away from the photosensitive drum as measured in the direction of the axis L1.”

The parties’ mutual stipulation recognises that the ALJ’s construction of the “movable limitation” indicates that “at least one disputed term of every claim asserted against

the [Type A-H] Products requires the claimed coupling member to be capable of pivoting or inclining with respect to the photosensitive drum.”

Subsequently, the respondents’ Type A-H Products “do not infringe any of the claims asserted against them under that construction. These are the only products of the Participating Respondents that remain at issue in this investigation.”

As a result of the Markman order, two pending motions for summary determination have been rendered “moot” and the following three pending motions for summary determination “are therefore ripe for adjudication”:

  • Aster Graphics, Inc., Jiangxi Yibo E-Tech Co., Ltd., and Aster Graphics

Company, Ltd.’s Motion for Summary Determination of Non-Infringement, filed

28 November 2018;

  • Print-Rite Respondents’ Motion for Summary Determination of Noninfringement,

filed 28 November 2018; and,

  • The Ninestar Respondents’ Contingent Motion for Summary Determination of

Noninfringement Under Certain Claim Constructions, filed 6 March 2019.

The parties involved in the investigation have expressed the view that the grant of these three motions for summary determination of noninfringement would be dispositive with respect to all Participating Respondents.” In addition, “the parties believe that an evidentiary hearing is not necessary, and respectfully request that the ALJ suspend the following deadlines set forth in Order No. 36 as modified in Order No. 38”.

This joint submission was filed on 8 March 2019.

Also filed on the same date was Canon’s Response to Ninestar’s Contingent Motion for Summary Determination of Noninfringement under Certain Claim Constructions.

This Response also concerns the ALJ’s construction of the “movable limitation” which “makes clear that at least one disputed term of every claim asserted against the Type F, G, and H Products requires the claimed coupling member to be capable of pivoting or inclining with respect to the photosensitive drum.”

Canon states that it “does not oppose summary determination that Ninestar’s Type F, G, and H Products do not infringe any of the claims asserted against them under that construction. These are the only Ninestar products that remain at issue in this investigation.” However, “While Canon does not oppose summary determination

under the ALJ’s construction of the “movable limitation,” Canon respectfully disagrees with the ALJ’s construction of the “movable limitation” and reserves all rights to petition for Commission review of any determinations of noninfringement based upon the ALJ’s construction of the “movable limitation.”

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