AMD Win Over TCL and Realtek at ITC Prompts Call for Public Comment

On July 7, 2023, Administrative Law Judge Cameron Elliot issued a Notice of Initial Determination in favor of computer and graphics processor maker AMD. See In the Matter of Certain Graphics Systems, Components Thereof, and Digital Televisions Containing the Same (No. 337-TA-1318). This puts AMD one step closer to preventing TCL and Realtek from importing smart TVs and components containing infringing graphics processors in its patent infringement case at the International Trade Commission (ITC).

Limited Exclusion Order Recommended

While the victory was not complete, Judge Elliot found that TCL and Realtek infringed one of two asserted AMD patents, according to a notice posted on the agency’s electronic docket. In the Initial Determination, Judge Elliot found that claims of U.S. Patent No. 7,742, 053, while valid, were not infringed. However, claims of another AMD patent—U.S. Patent No. 8,854,381—were found to be both infringed and valid. The ‘381 patent is directed to asynchronous dispatch technology used by graphics processors.

More specifically, AMD had asserted claims 15-17, 19 and 20 of the ‘381 patent. Elliot found that Respondents demonstrated invalidity of claims 15-17 but were unsuccessful challenging claims 19 and 20. Ultimately, this translated to no Section 337 violation found relating to the ‘053 patent, but there was a violation found relative to the ‘381 patent.

As a result of this finding, the Administrative Law Judge recommended that the Commission issue an import ban, in the form of a limited exclusion order, against TCL’s and Realtek’s infringing products. In terms of scheduling, in due course this determination is likely to undergo some review by the Commissioners of the ITC, with a final decision scheduled for November 7. Given the 60-day presidential review period applicable to Commission-issued exclusion orders, this schedule means that, even if there is an import ban, it wouldn’t take effect until shortly after the holiday shopping season.

Public Comment Sought

On July 20, the ITC published a notice soliciting submissions on public interest issues raised by the recommended relief should the Commission ultimately agree with the ALJ and find a violation. The comments are sought relating to the limited exclusion order directed to certain graphics systems, components thereof, and digital televisions containing the same that are imported, sold for importation, and/or sold after importation by Respondents. In particular, the Commission is interested in comments that: (i) explain how the articles potentially subject to the recommended remedial orders are used in the United States; (ii) identify any public health, safety, or welfare concerns in the United States relating to the recommended orders; (iii) identify like or directly competitive articles that complainant, its licensees, or third parties make in the United States which could replace the subject articles if they were to be excluded; (iv) indicate whether complainant, complainant’s licensees, and/or third-party suppliers have the capacity to replace the volume of articles potentially subject to the recommended orders within a commercially reasonable time; and (v) explain how the recommended orders would impact consumers in the United States. Written submissions must be filed no later than by close of business on August 14, 2023.

Judge Elliot’s full findings will not likely become public for another week or two, pending review of suggested redactions by the parties. The redaction process is commonplace with ITC decisions, with judges giving both sides the opportunity to suggest redactions of confidential business information, which are then reviewed by the judge prior to publication of full findings in a public document.

AMD is represented by Michael Renaud, James Wodarski, Michael McNamara, Adam Rizk, William Meunier, Marguerite McConihe, Matthew Karambelas, Catherine Xu, and Tianyi Tan of Mintz Levin.

TCL is represented by John P. Schnurer, Kevin Patariu, Yun Louise Lu, Vinay Sathe, Kyle Canavera, Hayden Householder, and James Coughlan of Perkins Coie.

Realtek is represented by three separate law firms including Robert Benson, Michael Chow, Johannes Hsu, Jana Zaidan, Jordan Coyle, Christopher Higgins, and Jeffrey Johnson of Orick, Steven Baik of White Hat Legal, and Elizabeth Weiskopf, Ewa Wojciechowska, Jay Chiu, Jiang Wu, Nelson Hua, and Theodore Angelis of K&L Gates.