ALJ Lord issued an Order Granting a Motion to Strike Affirmative Defense of unclean hands and inequitable conduct. Certain Krill Oil Products and Krill Meat for Production of Krill Oil Products, Order No. 8 (Feb. 7, 2017). Applying a heightened pleading standard for an inequitable conduct defense, ALJ Lord held that this affirmative defense did not satisfy the requirements of particularity articulated by the Federal Circuit in Exergen.
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.
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.
On October 19, 2016, the Commission issued a notice instituting an investigation in Certain Silicon-On-Insulator Wafers, Inv. No. 337-TA-1025. The Commission ordered the presiding administrative law judge to hold an early evidentiary hearing pursuant to the 100-day pilot program on whether the Complainant satisfies the economic prong of domestic industry.