Federal Circuit Stay Order Demonstrates Value of Redesign as Defense in ITC Actions

Federal Circuit Stay Order Demonstrates Value of Redesign as Defense in ITC Actions

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.

Default Determination Highlights The Importance Of Alleging Every Element

Default Determination Highlights The Importance Of Alleging Every Element

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.

ITC Commissioners Remain Split on Cease and Desist Orders

ITC Commissioners Remain Split on Cease and Desist Orders

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.

ALJ Finds ITC Remedial Orders Unenforceable

ALJ Finds ITC Remedial Orders Unenforceable

We previously wrote about the uphill battle Respondent Eko Brands faced in an enforcement proceeding after it defaulted in the underlying investigation. The ALJ found during the proceedings that res judicata barred its defenses of non-infringement and invalidity. However, Judge Essex issued an interesting determination this month finding that the Commission’s remedial orders are not enforceable against Eko because Complainant Adrian Rivera and Adrian Rivera Maynez Enterprises (“ARM”) did not properly establish the domestic industry requirement in the underlying investigation. He further found that even if the remedial orders are enforceable, that they should be provisionally rescinded pending final resolution of a district court case.