Cover All Your Bases in ITC Discovery

Cover All Your Bases in ITC Discovery

Certain Access Control Systems and Components Thereof, Inv. No. 337-TA-1016 (May 31, 2017), is a good lesson in covering all your bases. Relying on a non-infringement decision by ALJ Pender, respondents assumed that they did not need to present an invalidity case, and they failed to take certain relevant discovery. When Judge Pender’s decision was reversed by the Commission, they tried to get that discovery. Judge Pender ruled that it was too late.

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Is A Respondent’s Own Post-Importation Infringement A Violation Of Section 337?

Is A Respondent’s Own Post-Importation Infringement A Violation Of Section 337?

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.

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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.

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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.

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