No Early Disposition When The Key Issue Is Too Complex Or Not Case Dispositive

April 1, 2019

Jason W. Balich

(as published by ITC TLA)

In the Matter of CERTAIN DATA TRANSMISSION DEVICES, COMPONENTS THEREOF, ASSOCIATED SOFTWARE, AND PRODUCTS CONTAINING THE SAME, Inv. No. 337-TA-1150, Order Denying Requests For Entry Into Early Disposition Program

Before the Commission

Summary: Commission Rule § 210.10(b)(3) allows the Commission to “order the administrative law judge to issue an initial determination within 100 days of institution of an investigation … ruling on a potentially dispositive issue….,” a procedure known as the “Early Disposition Program.” 19 C.F.R. § 210.10(b)(3). In March, various respondents in Investigation No. 337-TA-1150 requested that the Commission utilize the Early Disposition Program, arguing that the asserted claims are invalid as being directed to unpatentable subject matter under 35 U.S.C. § 101, and that one of the two complainants could not satisfy the economic prong of the domestic industry requirement as it is allegedly a non-practicing entity. The Commission denied the respondents’ requests because they did not make it clear that the key issue of subject matter eligibility under § 101 is “likely to be dispositive with respect to all (and not just some) of the asserted claims.” And the Commission declined to take up the issue of the economic prong of the domestic industry requirement because it was too complex to resolve in the 100-day period.