UNITED STATES INTERNATIONAL TRADE COMMISSION
`Washington, D.C.
`
`Before The Honorable Robert K. Rogers, Jr.
`Administrative Law Judge
`
`In the Matter of
`
`CERTAIN DIGITAL PHOTO FRAMES AND
`IMAGE DISPLAY DEVICES AND
`COMPONENTS THEREOF
`
`Inv. No. 337-TA-807
`
` COMMISSION INVESTIGATIVE STAFF’S CONSOLIDATED RESPONSE TO
`COMPLAINANT’S MOTIONS FOR ORDERS TO SHOW CAUSE AND MOTIONS FOR
`DEFAULT
`
`On November 7, 2011, Complainant Technology Properties Limited, LLC (“TPL” or
`
`“Complainant”) filed five motions requesting orders directing Respondents Win Accord
`
`Ltd.,Win Accord U.S.A., Inc., Aiptek International, Inc., Nextar, Inc., and Curtis International,
`
`Ltd. to show cause why they should not be found in default and moving “for default in the event
`
`cause is not shown.” Motion Dkt Nos. 807-009 –807-013 (“Motions” and “Memorandum”). For
`
`the reasons put forth below, the Commission Investigative Staff (“Staff”) supports the portions of
`
`the Motions requesting orders to show cause. However, the requests for findings of default are
`
`premature.
`
`I.
`
`Background
`
`In its complaint, filed on August 24, 2011, TPL alleged that a number of entities had
`
`violated Section 337 in the importation, sale for importation, and/or sale after importation into
`
`the United States of certain digital photo frames and image display devices that infringe claims 1,
`
`
`Washington, D.C.
`
`Before The Honorable Robert K. Rogers, Jr.
`Administrative Law Judge
`
`In the Matter of
`
`CERTAIN DIGITAL PHOTO FRAMES AND
`IMAGE DISPLAY DEVICES AND
`COMPONENTS THEREOF
`
`Inv. No. 337-TA-807
`
` COMMISSION INVESTIGATIVE STAFF’S CONSOLIDATED RESPONSE TO
`COMPLAINANT’S MOTIONS FOR ORDERS TO SHOW CAUSE AND MOTIONS FOR
`DEFAULT
`
`On November 7, 2011, Complainant Technology Properties Limited, LLC (“TPL” or
`
`“Complainant”) filed five motions requesting orders directing Respondents Win Accord
`
`Ltd.,Win Accord U.S.A., Inc., Aiptek International, Inc., Nextar, Inc., and Curtis International,
`
`Ltd. to show cause why they should not be found in default and moving “for default in the event
`
`cause is not shown.” Motion Dkt Nos. 807-009 –807-013 (“Motions” and “Memorandum”). For
`
`the reasons put forth below, the Commission Investigative Staff (“Staff”) supports the portions of
`
`the Motions requesting orders to show cause. However, the requests for findings of default are
`
`premature.
`
`I.
`
`Background
`
`In its complaint, filed on August 24, 2011, TPL alleged that a number of entities had
`
`violated Section 337 in the importation, sale for importation, and/or sale after importation into
`
`the United States of certain digital photo frames and image display devices that infringe claims 1,
`
`
`
`-2-
`
`2, 9, 10, 17, and 18 of U.S. Patent No. 6,976,623; claims 1, 7, 11, 17, 19, and 21 of U.S. Patent
`
`No. 7,162,549; claims 1, 3, 4, 7, 9, 11, 12, and 14 of U.S. Patent No. 7,295,433; and claims 25,
`
`26, 28, and 29 of U.S. Patent No. 7,522,424 ("the asserted patents”). The Complaint was
`
`supplemented on September 24, 2011. The Commission instituted this investigation on
`
`September 27, 2011. 76 Fed. Reg. 59737 (September 27, 2011). The Commission served all of
`
`the Respondents with the Complaint and Notice of Investigation on September 22, 2011. Thus,
`
`the deadline for domestic Respondents to respond to the Complaint was October 13, 2011 and
`
`the deadline for overseas Respondents to answer the Complaint was October 24, 2011.
`
`To date, Respondents Win Accord Ltd, Win Accord U.S.A., Inc., Aiptek International,
`
`Inc., Nextar, Inc., and Curtis International, Ltd. (collectively, the “Nonparticipating
`
`Respondents”) have each failed to file an answer to the Complaint or to appear in any way in this
`
`investigation. Exhibit A to each of the Motions demonstrates that each of the Nonparticipating
`
`Respondents recieved actual service of the Complaint, and Exhibit B to each of the Motions
`
`shows that each of the Nonparticipating Respondents was also successfully served with TPL’s
`
`first set of discovery requests. See Motions, at Exhibits A and B.
`
`II.
`
`Discussion
`
`Commission Rule 210.16 lays out the procedure for a finding of default:
`
`§ 210.16 Default.
`(a) Definition of default. (1) A party shall be found in default if it fails to respond to the
`complaint and notice of investigation in the manner prescribed in §210.13 or §210.59(c),
`or otherwise fails to answer the complaint and notice, and fails to show cause why it
`should not be found in default.. . . .
`(b) Procedure for determining default. (1) If a respondent has failed to respond or appear
`in the manner described in paragraph (a)(1) of this section, a party may file a motion for,
`or the administrative law judge may issue upon his own initiative, an order directing that
`
`
`
`-3-
`
`respondent to show cause why it should not be found in default. If the respondent fails to
`make the necessary showing, the administrative law judge shall issue an initial
`determination finding the respondent in default. An administrative law judge's decision
`denying a motion for a finding of default under paragraph (a)(1) of this section shall be in
`the form of an order.
`
`The Rule thus lays out a two-step procedure whereby a respondent shall be found in
`
`default if it (1) fails to respond to the complaint and notice of investigation and (2) fails to show
`
`cause why it should not be found in default. Certain Devices Having Elastomeric Gel and
`
`Components Thereof, Inv. No. 337-TA-732, Order No. 11 at 2 (citing 19 U.S.C. 1337(g) and
`
`Commission Rule 210.16).
`
`The Staff submits that the conditions of Rule 210.16(a)(1), 19 C.F.R. § 210.16(a)(1),
`
`have been satisfied. The Nonparticipating Respondents have not properly responded to the
`
`Complaint and Notice of Investigation, have not otherwise appeared, and have not demonstrated
`
`that they intend to participate in the Investigation. Each of the Nonparticipating Respondents
`
`should therefore be directed to show cause, by a date chosen by the Judge, why it should not be
`
`held in default. See, e.g., Certain Tadalafil or Any Salt or Solvate Thereof and Products
`
`Containing Same, Inv. No. 337-TA-539, Order No. 4 (Aug. 8, 2005). The Staff thus supports the
`
`portion of each of the Motions requesting an order to show cause.
`
`However, as the Nonparticipating Respondents have not yet failed to respond to an order
`
`to show cause, the Staff submits that the portions of the Motions moving for a finding of default
`
`are premature. As discussed above, if the Nonparticipating Respondents fail to make any
`
`showing in response to an order to show cause, then they may be found in default. If any of the
`
`
`
`-4-
`
`Nonparticipating Respondents does respond to an order to show cause, the Staff may submit
`
`additional briefing concerning the sufficiency of any showing that it may make.
`
` III. Conclusion
`
`As none of the Nonparticipating Respondents has filed an answer to the Complaint or
`
`appeared in any way of this investigation, and the deadline for all answers to the Complaint has
`
`passed, the Staff supports the portions of the Motions requesting that the Nonparticipating
`
`Respondents be ordered to show cause why they should not be held in default. However, as no
`
`order to show cause has yet been issued, the Staff submits that the portion of the Motions
`
`requesting an entry of default are premature.
`
`Respectfully submitted,
`
` /s/ Aarti Shah
`Lynn I. Levine, Director
`David O. Lloyd, Supervisory Attorney
`Aarti Shah, Investigative Attorney
`OFFICE OF UNFAIR IMPORT
`INVESTIGATIONS
`U.S. International Trade Commission
`500 E Street, S.W., Suite 401
`Washington, D.C. 20436
`Tel: 202.205.2657
`Fax: 202.205.2158
`aarti.shah@usitc.gov
`
`
`
`November 14, 2011
`
`
`
`CERTAIN DIGITAL PHOTO FRAMES
`AND IMAGE DISPLAY DEVICES AND
`COMPONENTS THEREOF
`
` Investigation No. 337-TA-807
`
`CERTIFICATE OF SERVICE
`
`The undersigned certifies that on November 14, 2011, she caused the foregoing
`COMMISSION INVESTIGATIVE STAFF’S CONSOLIDATED RESPONSE TO
`COMPLAINANT’S MOTIONS FOR ORDERS TO SHOW CAUSE AND MOTIONS FOR
`DEFAULT to be served by hand upon Administrative Law Judge Robert K. Rogers, Jr. (2
`courtesy copies), and served upon the parties in the manner indicated below.
`
`COUNSEL FOR COMPLAINANT
`
`SERVED BY EMAIL
`
`Counsel for Complainant Technology Properties Limited, LLC:
`James C. Otteson
`Agility IP Law, LLC
`1900 University Circle, Suite 201
`East Palo Alto, CA 94303
`ogma773@agilityiplaw.com
`
`RESPONDENTS REPRESENTED BY COUNSEL WHO HAVE SIGNED THE
`PROTECTIVE ORDER
`
`SERVED BY EMAIL
`
`Counsel for Respondent Action Electronics Co., Ltd.:
`Kao H. Lu
`Ryder Lu Mazzeo & Konieczny
`1425 E. Darby Road
`Havertown, PA 19083
`
`
`
`Counsel for Respondent Audiovox Corporation:
`D. Joseph English
`Duane Morris LLP
`505 9th Street, N.W., Suite 1000
`Washington, DC 20004
`
`Counsel for Respondent Coby Electronics Corporation:
`Joseph A. Calvaruso
`Orrick, Herrington & Sutcliffe, LLP
`51 West 52nd Street
`New York, NY 10019-6142
`
`Counsel for Respondent Digital Spectrum Solutions, Inc.:
`Robert D. Fish
`Fish & Associates PC
`2603 Main Street, Suite 1000
`Irvine, CA 92614
`
`Counsel for Respondent Eastman Kodak Company:
`David M. Maiorana
`Jones Day
`North Point
`901 Lakeside Avenue
`Cleveland, OH 44114
`
`Counsel for Respondent Mustek Systems, Inc.:
`Irfan A. Lateef
`Knobbe, Martens, Olson & Bear, LLP
`2040 Main Street, 14th Floor
`Irvine, CA 92614
`
`6
`
`
`
`Counsel for Respondent Pandigital:
`James P. Martin
`Shartsis Friese LLP
`One Maritime Plaza, 18th Floor
`San Francisco, CA 94111
`
`Counsel for Respondent Sony Corporation:
`Marcia H. Sundeen
`Kenyon & Kenyon LLP
`1500 K Street, N.W.
`Washington, DC 20005
`
`Counsel for Respondent Transcend Information, Inc.
`Eric C. Rusnak
`K&L Gates LLP
`1601 K Street, N.W.
`Washington, DC 20006
`
`Counsel for Respondent Viewsonic Corporation:
`Kevin M. O’Brien
`Baker & McKenzie LLP
`815 Connecticut Ave, N.W.
`Washington, DC 20006
`
`7
`
`
`
`RESPONDENTS WHO HAVE NOT YET APPEARED OR WHOSE COUNSEL HAVE NOT
`SUBSCRIBED TO THE PROTECTIVE ORDER
`
`SERVED BY AIR MAIL AND FIRST CLASS MAIL UNLESS OTHERWISE NOTED
`
`Counsel for Respondent Aluratek, Inc. (Served by email):
`Janine A. Carlan
`Arent Fox LLP
`1050 Connecticut Ave., N.W.
`Washington, DC 20036
`
`Counsel for Respondent Circus World Displays Ltd. (Served by email):
`Thomas C. McDonough
`Neal Gerber Eisenberg LLP
`2 N. LaSalle Street, Suite 1700
`Chicago, IL 60602-3801
`
`Respondent Aiptek International Inc.:
`No 19, Industry E. Rd. IV. Science Park
`Hsinchu 300, Taiwan
`
`Respondent CIEVA Logic, Inc.:
`214 E. Magnolia Boulevard
`Burbank, CA 91502
`
`Respondent Curtis International, Ltd.:
`315 Attwell Drive, Etobicoke
`Ontario, M9W 5C1
`Canada
`
`Respondent Nextar Inc.:
`1661 Fairplex Drive
`La Verne, CA 91750
`
`8
`
`
`
`Respondent Royal Consumer Information Products, Inc.:
`379 Campus Drive
`Somerset, NJ 08875
`
`Respondent Win Accord Ltd.:
`12F, No. 225, Sec. 5
`Nan Jing E. Road
`Song Shan District
`Taipei, Taiwan 105
`
`Respondent WinAccord U.S.A., Inc.:
`2526 Qume Drive, Suite 24
`San Jose, CA 95131
`
` /s/Aarti Shah
`Aarti Shah
`Investigative Attorney
`OFFICE OF UNFAIR IMPORT
`INVESTIGATIONS
`U.S. International Trade Commission
`500 E Street, S.W., Suite 401
`Washington, D.C. 20436
`(202) 205-2657 (phone)
` (202) 205-2158 (fax)
`
`9
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