The ITC issued an Opinion finding a violation of Section 337 and issuing a general exclusion order and cease and desist orders. Of note, the Commission clarified that the “industry” for unregistered trade dress need not be defined by the subheadings in 19 U.S.C. § 1337(a)(3) like they are in a patent-based or registered trademark-based investigation.
ALJ Pender’s initial determination in Certain Mobile Device Holders and Components Thereof, Inv. No. 337-TA-1028 (Sept. 12, 2017), finding a violation of Section 337, provides important guidance on what investments count toward the economic prong of the domestic industry requirement. Although Respondents provided no counterarguments because they had defaulted, ALJ Pender analyzed and challenged each of Complainant’s proofs, ultimately finding that the domestic industry requirement had been met.
The Commission issued an Opinion finding a violation of Section 337 in Certain Air Mattress Systems, Components Thereof, and Methods of Using Same, Inv. No. 337-TA-971. Of note, the Commission reversed a part of ALJ Bullock’s initial determination (ID) which had found that Complainant did not satisfy the economic prong of the domestic industry requirement.
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.
On February 10, Judge Essex issued the public version of his order denying Complainant’s Motion for Leave to Supplement Its Exhibit List and Witness Statement to Address Recent Developments in Its Domestic Industry.
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.