ALJ Essex has retired from the ITC after a decade of service. News of his retirement was provided in notices issued by Chief ALJ Bullock in investigations previously assigned to ALJ Essex.
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.
The ITC has dealt a significant blow to the use of Inter Partes Review as a defense to a Section 337 investigation. In an order issued this week, the Commission denied a request to stay remedial orders that are currently on appeal after the asserted claims were found unpatentable by the USPTO Patent Trial and Appeal Board in IPR proceedings.
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.
Before 2011, the ITC routinely found violations of Section 337 based on the infringement of method claims through a respondent’s own use of an article post-importation. This changed when the ITC issued its Opinion in Certain Electronic Devices with Image Processing Systems, Components Thereof and Associated, Inv. No. 337-TA-724 (“Electronic Devices”). In that case the ITC held that post-importation direct infringement of a method claim, without a showing of indirect infringement, could not substantiate a violation of Section 337. But the ITC has recently indicated that it is rethinking its Electronics Devices precedent.