Television Sets: Commission Clarifies When Past Domestic Industry Investments No Longer Count And When Post-Complaint Activities May Be Considered

The Commission has once again addressed the economic prong of the domestic industry requirement in a final determination issued in Certain Television Sets, Television Receivers, Television Tuners, and Components Thereof (Inv. No. 337-TA-910) ("Television Sets") on October 30, 2015. Notably, the Commission clarified (1) when past investments are no longer relevant and (2) when post-complaint activities are relevant.

Background

On January 28, 2014, Cresta Technology Corporation ("Cresta") filed a Section 337 complaint, alleging infringement of three patents in the importation and sale of certain television sets, television receivers, television tuners, and components thereof. Presiding Administrative Law Judge Dee Lord conducted a hearing in December 2014, and issued the final initial determination ("final ID") on February 27, 2015, finding no violation of Section 337. Specifically, the final ID found that Cresta had failed to satisfy the economic prong of the domestic industry requirement in accordance with 19 U.S.C. § 1337(a)(3) with respect to both of the two remaining patents in the investigation. The final ID also found that some of the accused products infringed claims of both patents in the investigation, and that all asserted claims of one patent and some asserted claims of the other patent were invalid.

On April 30, 2015, the Commission determined to review the final ID in part. This review encompassed the economic prong of the domestic industry requirement as well as issues of patent validity and infringement. However, the Commission only requested additional briefing on questions relating to validity and infringement. The Commission issued the public version of its final opinion on October 30, 2015, terminating the investigation with a finding of no violation of Section 337. (Our prior blog post regarding the Commission's clarification in Television Sets of whether service of the complaint meets the knowledge requirement for contributory infringement can be found here.)

The Economic Prong of the Domestic Industry Requirement

The economic prong of the domestic industry requirement is satisfied when "there is in the United States, with respect to the articles protected by the patent . . . (A) significant investment in plant and equipment; (B) significant employment of labor or capital; or (C) substantial investment in its exploitation, including engineering, research and development." 19 U.S.C. § 1337(a)(3). Subparagraphs (A), (B)...