By: Spencer Beall and David Maiorana – In a recent summary determination order, ALJ Bullock found that complainants cannot always rely on circumstantial evidence to satisfy the Section 337 importation requirement.  Certain Height-Adjustable Desk Platforms and Components Thereof, 337-TA-1125, Order 33 (September 13, 2019).  While circumstantial evidence can prove that infringing products were imported from the same country, it may not be sufficient to prove that a respondent actually shipped an infringing product.

In this investigation, Complainant accused eight Respondents of violating Section 337 by importing and/or selling height-adjustable desks that violated four of Complainant’s patents.  Some of the accused products had no markings or labels indicating China as the country of origin.   Although Complainant lacked direct evidence that the particular desks in question came from China, ALJ Bullock inferred that the desks came from China based on importation records of prior desk shipments.  In this instance, ALJ Bullock determined that Complainant satisfied the importation requirement for one Respondent based on “substantial circumstantial evidence.” 

Not without limits, Complainant’s circumstantial evidence could only go so far.  ALJ Bullock found that Complainant could not satisfy the importation requirement based on circumstantial evidence alone where a Respondent’s name was not listed on the shipping information.  Complainant submitted exhibits showing importation records from all Respondents except Haining Orizeal (“Haining”).  For Haining, Complainant tried to rely on affidavit and exhibit evidence showing that Haining makes height-adjustable desks, and that desks marketed under the “ANNT Lumsing” and “Fezibo” trade names are imported into the United States.  Absent importation records bearing Haining’s name, however, ALJ Bullock concluded “[t]he evidence fail[ed] to show…that the Haining Orizeal desks are the same desks that are imported under those trade names.”  Therefore, “Varidesk did not establish that the importation requirement of section 337 was satisfied with respect to Haining Orizeal.”


This order illustrates the danger of relying solely on circumstantial evidence to establish importation at the ITC.  A Respondent might conduct business under different names which can make it difficult for complainants to establish the necessary connections between various business entities involved with manufacturing and importation. Complainants should be diligent in seeking to establish that a respondent actually shipped or received the infringing products whenever possible.

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Dave Maiorana is a trial lawyer with a notable combination of significant experience as a USPTO examiner along with 20 years litigating complex intellectual property matters. He has represented clients as both plaintiffs and defendants around the country and in the ITC. Dave has experience in diverse technology areas, including teeth whitening, diapers, fem care products, self-inflating tires, oxygen concentrators, flash memory, and digital cameras.