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ARTICLE · 27 JULY 2022

Too Many Bites At The Apple?

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When a patent owner loses at the International Trade Commission ("ITC"), can it hire new counsel and try again in district court? That question will be answered in Gamevice...

United StatesIntellectual Property
Jeffrey Liang
Jeffrey Liang
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When a patent owner loses at the International Trade Commission ("ITC"), can it hire new counsel and try again in district court? That question will be answered in Gamevice, Inc. v. Nintendo Co., Ltd. et al, No. 3-18-cv-01942 (N.D. Cal.), where plaintiff Gamevice is asserting three patents against Nintendo despite losing on those same patents in two prior ITC proceedings.

In 2018, Gamevice filed an ITC complaint against Nintendo, alleging that the Nintendo Switch infringed two related Gamevice patents. Gamevice lost. The administrative law judge (ALJ") entered an Initial Determination of No Violation. Gamevice appealed the ALJ's claim constructions to the full Commission and the Federal Circuit, and lost at both levels. Subsequently, Gamevice filed a second ITC action asserting a newly-issued continuation patent. Despite the fact that this new patent was filed and prosecuted during the prior ITC proceeding specifically to overcome claim construction issues in that

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