By: Charles Lee and Vishal Khatri – On March 31, 2020, the ITC issued an order denying Respondents’ request to use the Early Disposition Program.  Certain Electronic Candle Products and Components Thereof, Inv. 337-TA-1195.  The ITC concluded that the issue of domestic industry was too complex to be resolved within 100 days.

Under 19 C.F.R. § 210.10(b)(3), the Early Disposition Program is intended to allow the ALJ to decide within 100 days certain dispositive issues in an attempt to limit unnecessary litigation, saving time and costs for all parties involved.  If ordered by the Commission, the ALJ is required to issue an initial determination within 100 days of institution of the investigation.  The ALJ is permitted to hold hearings on the designated issue and to stay discovery of any remaining issues during the pendency of the proceeding.

In this investigation, L&L Candle Company, LLC and Sotera Tschetter, Inc. (collectively, “Complainants”) filed a complaint against numerous respondents, including The Gerson Company, Gerson International (H.K.)., Ltd., Sterno Home Inc., Lifetime Brands, Inc., Scott Brothers Entertainment, Inc., and MerchSource, LLC (collectively, “Respondents”), alleging infringement of certain patents.  On March 17, 2020, the Respondents submitted a Request for Early Disposition, in which they argued that the complaint overemphasized the Complainants’ domestic sales and marketing activities and therefore the Complainants are unlikely to satisfy the economic prong of the domestic industry requirement.

In a two-page order, the Commission denied the Respondents’ request for entry into the Early Disposition Program.  The Commission noted, without much explanation, that “the issues raised may be too complex to be decided within 100 days of institution.”

Takeaway

Despite the ITC’s denial of Respondents’ request in this investigation, parties should still be aware of the Early Disposition Program because successful use of the program, much like a successful motion for summary judgement, will limit unnecessary litigation and save time and costs for all parties involved.  Convincing the ITC to utilize the program requires the respondents to illustrate that the issue is truly dispositive of the entire investigation, and that the issue is not too complex to decide within 100 days of institution.

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Vishal Khatri is an intellectual property lawyer with more than 15 years of experience representing clients in high stakes, bet-the-company patent litigation and procurement matters around the world. He routinely represents clients in matters before U.S. district courts, the United States International Trade Commission (ITC), and the United States Patent and Trademark Office (USPTO), including Inter Partes Review (IPR) proceedings before the Patent Trial and Appeal Board (PTAB).