ALJ Shaw held that the “colorable difference” test established by the Federal Circuit in its en banc Tivo v. Echostar opinion was not the appropriate test to determine whether the CDO was violated.
As noted in a previous post, ALJ Lord issued a domestic industry ruling, which the Commission later vacated without position, finding that R&D-based investments in plant and equipment or labor and capital cannot count towards satisfying subsections (A) or (B) of the domestic industry requirement, 19 U.S.C. § 1337 (a)(3). Two recent decisions from the ITC appear to conflict with ALJ Lord’s position, leaving the issue ripe for the Commission to directly address.
In Certain Carbon Spine Board Devices, Inv. No. 337-TA-1008, the ITC investigated Complainant Laerdal’s allegations of section 337 violations based on the infringement of certain U.S. patents, copyrights, trade dresses and trademarks. The ITC determined to issue a limited exclusion order to some, but not all of the respondents, and a cease and desist order to one respondent. But the Commission also found that certain of Laerdal’s allegations relating to trade dress and copyright infringement were not adequately plead to support a violation of Section 337 which reduced the scope of the granted remedy.
Last week, Judge Essex issued a notice updating his ground rules in active investigations pending before him.
ITC Commissioner F. Scott Kieff has announced that he is leaving the ITC to return to his previous academic position as a professor at the George Washington University Law School. Kieff’s last day at the ITC will be June 30, 2017.