Portable Electronic Devices: 100 Days To Determine §101 Patentability

In the recently instituted 994 investigation (Portable Electronic Devices and Components Thereof), the Commission has directed the Administrative Law Judge (ALJ) to determine, within 100 days of institution, whether the only asserted patent is invalid under Section 101. This is the first time that the Commission has called for an expedited decision on a Section 101 issue, and only the third time the Commission has identified a potentially dispositive issue for an early 100-day proceeding.

As we have noted previously, the ITC currently has a pilot program under which parties can ask the Commission to schedule an initial determination on case-dispositive issues within 100 days of institution. The Commission has proposed making this program a permanent part of the ITC's rules. Prior to institution of the 994 investigation, several proposed respondents asked the Commission to designate the Section 101 invalidity issue for early determination in a 100-day proceeding.