ITC Issues First Early Initial Determination of Patent-Ineligibility Under 35 U.S.C. § 101

On August 19, 2016, Administrative Law Judge David P. Shaw of the U.S. International Trade Commission (ITC) issued the ITC's first early Initial Determination of patent-ineligibility under 35 U.S.C. § 101, pursuant to the ITC's new 100-day program. The ITC's 100-day program began as "a pilot program to test whether earlier rulings on certain dispositive issues in some section 337 investigations could limit unnecessary litigation, saving time and costs for all parties involved," according to the ITC.

The early Initial Determination, which is subject to review by the full commission, was issued in Investigation No. 337-TA-994 and finds all claims of U.S. Patent No. 6,928,433 (the '433 patent) invalid under 35 U.S.C. § 101. In this investigation, complainants Creative Technology Ltd. and Creative Labs Inc. asserted the '433 patent against a number of mobile device manufacturers, including WSGR clients BlackBerry Ltd., BlackBerry Corp., Lenovo Group Ltd., Lenovo (United States) Inc., and Motorola Mobility LLC. The complaint accused the respondents of importing devices that infringe the '433 patent through their media player functionalities, including Google Play Music. WSGR client Google Inc. was granted intervenor status in the investigation. At respondents' and intervenor's urging, the ITC designated the issue of patent-eligibility under 35 U.S.C. § 101 for early adjudication as part of its 100-day program. The program had been used twice before for early determinations on domestic industry and standing.

The WSGR team representing Google Inc., BlackBerry Ltd., BlackBerry Corp., Lenovo Group Ltd., Lenovo (United States) Inc., and Motorola Mobility LLC includes partners Stefani Shanberg and Jennifer Schmidt, Of Counsel Veronica Ascarrunz, and associates Robin Brewer, Eugene Marder, Madeleine Greene, and Michael Guo.