Motiva, LLC v. International Trade Commission and Nintendo Co., Ltd. et al.

Docket No. 2012-1252

May 13, 2013

Summary: Motiva appealed ITC decision that Nintendo’s importation of its Wii video game system did not violate § 337 of the Tariff Act of 1930 because “a domestic industry does not exist nor is in the process of being established” for its patents. Motiva originally filed a patent infringement suit against Nintendo in the USDC ED TX which was later transferred to the USDC WD WA and then stayed pending a USPTO reexamination proceeding. Subsequent to the stay, Motiva filed a complaint with the ITC. It was determined that Motiva’s patented technology was not incorporated into any commercialized products (including Nintendo’s) and that its only activity directed at developing an industry was the litigation which was not “in any way related to the exploitation of the patents.” The FC panel pointed out that Motiva’s litigation may have satisfied the “economic prong of the domestic industry requirement if it was substantial and directed toward a licensing program that would encourage adoption and development of articles that incorporated” the patented technology (citing Interdigital, FC 2013). But the ALJ found no evidence of such a program. Thus, the ITC decision was affirmed.

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