Yesterday, the Supreme Court denied Sino Legend’s petition for certiorari of the Federal Circuit’s summary affirmance of the Commission’s decision in Certain Rubber Resins & Processes for Mfg. Same, ITC Inv. No. 337-TA-849 (Feb. 26, 2014). Thus, after almost three years of appeals, and without any substantive analysis by either the Federal Circuit or the Supreme Court, the Commission Opinion has been upheld.
Following up on our November 22, 2016, post, the Commission issued a Notice of its Final Decision in Certain Lithium Metal Oxide Cathode Materials, Lithium-Ion Batteries For Power Tool Products Containing Same, And Power Tool Products With Lithium-Ion Batteries Containing Same, Inv. No. 337-TA-951. As previously discussed, the oral argument in front of the Commission in this investigation was the first in nearly a decade.
Under 19 C.F.R. § 210.79, the ITC can issue an advisory opinion “as to whether [a] person’s proposed course of action or conduct would violate a Commission exclusion order, cease and desist order, or consent order.” On November 7, 2016, The Office of Unfair Import Investigation (“OUII”) issued its report in Certain Foam Footwear, ITC Inv. No. 337-TA-567 (Advisory Opinion Proceeding) recommending an advisory opinion that the requesters’ products do not violate the Commission’s remedial orders. Of note, the Staff recommended that the scope of the advisory opinion be limited to the products actually named in the requesters’ petition.
On October 31, 2016, Judge Essex issued an Initial Determination in Certain Stainless Steel Products, Certain Processes for Manufacturing or Related to Same and Certain Products Containing Same denying Complainant Valbruna Slater Stainless, Inc., Valbruna Stainless Inc., and Valbruna S.p.A.’s (collectively, “Valbruna”) motion to initiate a bond forfeiture proceeding. Judge Essex held that a bond forfeiture proceeding cannot be instituted until after all appeals of the Commission’s violation decision have been exhausted.
Certain Beverage Brewing Capsules, Components Thereof, And Products Containing the Same, Inv. 337-TA-929, is a cautionary tale of the risks of defaulting at the ITC. Eko Brands, LLC defaulted in the ITC’s original investigation. The Commission later concluded that Eko infringed two claims that depended from independent claims found to lack written description support. Separately, a district court found that Eko did not infringe the asserted claims. It is unclear whether Eko will succeed in fending off an enforcement proceeding filed against it relating to its activities since the Commission’s remedial orders were issued.
In this installment of Section 337 Week in Review, the Commission denies a stay of an exclusion order in 337-TA-721 and extends the target date in 337-TA-959.