In yet another significant development at the ITC on Section 101 issues, the Commission has ordered an early hearing in a newly-instituted Section 337 investigation as to whether the asserted claims of the sole patent-in-suit recite patent-eligible subject matter under 35 U.S.C. § 101. The case—Certain Portable Electronic Devices and Components Thereof, Inv. No. 337-TA-994—involves, according to the complaint, devices allegedly using the complainants’ patented methods for accessing “media tracks stored on the portable electronic device by navigating through a hierarchical categorization [such as artist name].” The Commission’s order, which requires the presiding Administrative Law Judge (Judge Shaw) to hold a hearing and issue a decision within 100 days, is only the third investigation in which the Commission has ordered a fast-track hearing under its Pilot Program for early case disposition, and the first ever designated for early hearing on a patent issue.
The ITC announced its Pilot Program in June 2013. Although it does not specifically say so, it is widely understood that the Commission instituted the Pilot Program to address a perceived influx in Section 337 cases brought by non-practicing entities (NPEs). The first case under the Pilot Program involved Section 337’s requirement that the complainant establish that there is an existing “U.S. industry” relating to the patent or to articles protected by it or that such an industry is in the process of being established. The only other case designated under the program since it was announced in 2013 involved a standing issue (patent ownership).
The Commission’s fast-tracking of a Section 101 issue in Portable Electronic Devices may signal new uses for the Pilot Program. The timing of the order does not seem coincidental, as it follows on the heels of significant developments in the Commission’s Section 101 jurisprudence in Certain Activity Tracking Devices, Systems, and Components Thereof, Inv. No. 337-TA-963. As we noted in a previous blog post, the Commission recently affirmed a Section 101 summary determination ruling by Administrative Law Judge (ALJ) Lord in a case involving popular activity-monitoring devices. That ruling was significant as it was the first ITC ruling involving patentable subject matter under Section 101 since the Supreme Court’s seminal decision in Alice Corp. v. CLS Bank International, 134 S. Ct. 2347 (2014). (ALJ Lord has since granted a second summary determination finding two additional patents invalid on Section 101 grounds.) The Commission’s designation of a Section 101 issue for early disposition under its Pilot Program can be viewed as consistent with these developments and with the trend of early dispositive rulings on Section 101 issues in the district courts.