In a recent Initial Determination, Administrative Law Judge Shaw concluded that the Complainant’s reliance on marketing and instructional materials was not sufficient to prove inducement of infringement of a claimed method.
The Federal Circuit has determined to partially stay an ITC exclusion order as it pertains to products redesigned after the remedial orders issued. We have previously posted about Certain Network Devices, Related Software and Components Thereof (II); Inv. No. 337-TA-745 and the ITC’s refusal to stay its remedial orders after the Patent Trial and Appeal Board found the asserted patents unpatentable in an IPR proceeding. Respondent Arista has had better luck in the Federal Circuit obtaining a stay of the remedial orders for its redesigned products.
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.
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.
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.
This month, in Certain Arrowheads with Deploying Blades and Components Thereof and Packaging Therefor, Inv. No. 337-TA-977, the Commission weighed in on the standard for obtaining a cease and desist order where the respondents default. The majority held that the ITC will only issue a cease and desist order against a defaulting respondent when evidence of domestic inventory of accused products is provided in the complaint. In such circumstances, the ITC will presume that the domestic inventory is commercially significant because the respondent defaulted.