## Facts

- Motiva, LLC owned two patents directed to a “human movement measurement system” for exercise and physical rehabilitation using interactive feedback.
- Motiva pursued commercialization for several years, including developing prototypes and seeking partners, but stopped before producing a market-ready product.
- Motiva’s remaining prototype was incomplete and required significant additional testing and design work.
- Motiva sued Nintendo in federal district court for alleged infringement based on the Wii system; the case was stayed pending USPTO reexamination.
- Motiva then filed a § 337 complaint at the International Trade Commission alleging Nintendo’s importation and sale of the Wii infringed Motiva’s patents.
- Evidence showed Motiva framed its strategy as licensing driven by litigation and viewed excluding the Wii as important to generating licensing revenue.

## Issues

1. Whether Motiva’s patent-infringement litigation expenditures and asserted “product-driven licensing” strategy constituted “substantial investment in [the patent’s] exploitation ... or licensing” sufficient to satisfy § 337’s domestic-industry economic prong.
2. Whether Motiva proved a domestic industry “is in the process of being established” based on earlier commercialization efforts, ongoing litigation, and plans for future licensing.

## Decision

- The Federal Circuit affirmed the ITC’s final determination that Nintendo did not violate § 337.
- The court held substantial evidence supported the ITC’s finding that, after 2007, Motiva’s relevant investments were largely limited to litigation against Nintendo.
- The court concluded Motiva’s litigation was aimed primarily at monetary recovery and excluding a competing product, not at encouraging adoption and development of articles practicing the patents.
- The court rejected Motiva’s argument that a domestic industry was “in the process of being established,” finding Motiva’s commercialization efforts had stalled and were not presently ongoing beyond litigation.

## Legal Principles

- Section 337 relief requires proof of a U.S. domestic industry relating to articles protected by the asserted patent, including satisfaction of an economic prong under 19 U.S.C. § 1337(a)(2)–(3).
- The economic prong may be satisfied by substantial investment in exploitation of the patent, including licensing, but the investment must be tied to encouraging development and adoption of articles incorporating the patented technology.
- Litigation expenses may, in limited circumstances, support the economic prong when connected to a bona fide licensing or commercialization program; litigation pursued chiefly to exclude a competitor or generate monetary recovery is insufficient.
- Past, discontinued commercialization activity, without current concrete steps toward development, licensing, or production, does not establish that a domestic industry is “in the process of being established.”

## Conclusion

The Federal Circuit upheld the ITC’s determination that Motiva failed to satisfy § 337’s domestic-industry requirement because its principal activity was infringement litigation not meaningfully connected to ongoing commercialization or licensing efforts aimed at bringing patented articles to market.


Motiva, L.L.C. v. Int'l Trade Comm'n, 716 F.3d 596 (Fed. Cir. 2013)