Re: GE vs ITC (2/11 case) out today... by Newman (No IDCC) EOM
While I don't remember the exact details of the ITC decision...I would bet that this GE vs. ITC decision has direct bearing on the IDCC case delay.
This key issue here is Newman chastising the ITC for its procedures which...in the interest of speed....the full Commission deliberately fails to affirm part of the ALJ's Initial Review (by specifying that it reserves judgement on an issue) due to to agreeing with some other issue which would defeat an infringement charge.
In the GE case...the CAFC reversed the ITC on the issue which the ITC used to decide infringement of one of the patents failed to be proven...however the ITC reserved judgement on another issue which now has to be remanded back to the ITC to determine....wasting time, money, and judicial resources.
Newman points out that until 2005, law and regulations stated that any issue not considered or addressed by the ITC from the ALJ'd Initial Determination was confirmed. However, changes in ITC regulations were made in 2005 which allowed the ITC Commission to point out "address" issues which they DELIBERATELY didn't want to rule on and carve out an exception to the blanket confirmation rule. Newman states that reaching FINALITY is a key goal of the Commission's deliberations and it makes no sense to piecemeal rule as the ITC's new regs allow due to the possibility of remand by the CAFC.
I would guess that if a lawyer looked at the IDCC ruling by the ITC Commission, we find this same issue. Due to the Commission's claims construction confirmation of the ALJ, the Commission likely glossed over a seperate issue related to infringement in question but specifically reserved reaching a decision. If this in fact is the case, we are probably looking at a remand of the IDCC decision to the ITC Commission to readjudicate the infringement ruling (using the claims construction the CAFC sets).
Just a guess....