R&D Based Domestic Industry Questions Remain

R&D Based Domestic Industry Questions Remain

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. 

ITC Scrubs Domestic Industry Holding In Brushes Investigation

ITC Scrubs Domestic Industry Holding In Brushes Investigation

On February 7, 2017, the ITC issued a Notice modifying the ALJ’s Initial Determination in Certain Electric Skin Care Devices, Brushes and Chargers Therefor, and Kits Containing Same, ITC Inv. No. 337-TA-959 and issuing general and limited exclusion orders and cease and desist orders. Of note, the Commission vacated but took no position on the ALJ’s holding that R&D-related expenditures should not be counted toward meeting the domestic industry requirement under subsections A or B of the statute.

Commission Strikes Allocation Analysis From Economic DI Order

Commission Strikes Allocation Analysis From Economic DI Order

On December 7, 2016, the Commission affirmed Judge McNamara’s Initial Determination finding that the economic prong of domestic industry was satisfied in Certain Composite Aerogel Insulation Materials and Methods for Manufacturing Same, Inv. No. 337-TA-1003. However, the Commission determined to review and strike the portion of Judge McNamara’s decision relating to the allocation of expenses by asserted patent.

Improper Allocation of Expenses Prevents Finding of Domestic Industry

Improper Allocation of Expenses Prevents Finding of Domestic Industry

Chief Administrative Law Judge Bullock issued the public version of his Initial Determination in Certain Air Mattress Systems, Components Thereof, and Methods of Using Same wherein he found that one of two asserted patents was valid and infringed. However, there was no violation of Section 337 because Complainants failed to properly allocate domestic expenses between the asserted patents.