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 He further found that even if the remedial orders are enforceable, that they should be provisionally rescinded pending final resolution of a district court case.
Sixty new Section 337 related complaints were filed at the ITC in 2016—a 50% increase over the previous year. This marks a reversal of a trend that saw a reduction of complaints from seventy-two in 2011 to only forty in 2015. The sixty complaints in 2016 included fifty-four for new violation proceedings, one request each for an advisory opinion and modification of remedial orders, and four enforcement actions.
On November 17th, the ITC held an oral argument in front of a packed hearing room 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. The oral argument was notable in that it was the first the Commission has held for a Section 337 investigation in nearly a decade.