By: Spencer Beall and Vishal Khatri – In a recent order, ALJ Cheney granted leave for Complainant to personally serve certain foreign Respondents because the ITC was unable to successfully serve those Respondents.  See In re Certain Child Carriers and Components Thereof, INV. No. 337-TA-1154, Order No. 8 (May 3, 2019) (“Order”).  We have previously discussed the ease with which service of process can be accomplished against foreign Respondents at the ITC (here).

On March 6, 2019, LILLEbaby LLC (“LILLEbaby”) filed a complaint requesting the ITC to investigate twenty-seven domestic and foreign companies for allegedly infringing its patents related to child carriers.  Upon institution of the investigation, the ITC successfully served all but three Respondents – BabySwede LLC (“BabySwede”), Wuxi Kangarouse Trading Co. Ltd. Enterprises d/b/a Kangarouse (“Kangarouse”), and Quanzhou Mingrui Bags Co. Ltd. (“Mingrui”).  Kangarouse and Mingrui are foreign entities.

LILLEbaby subsequently filed a motion for leave to effect personal service of the complaint and notice of investigation on the three Respondents, pursuant to 19 C.F.R. § 210.11(b).  In relevant part, Rule 210.11(b) provides that “a complainant may attempt to effect personal service of the complaint and notice of investigation upon a respondent, if the Secretary’s efforts to serve the respondent have been unsuccessful.”

In their motion, LILLEbaby explained that the ITC’s attempted service on the three Respondents was unsuccessful and that the complaint identified the best known address for the three Respondents based on a reasonable investigation and publically available information.  ALJ Cheney granted LILLEbaby’s request for leave based on LILLEbaby’s representations.

Takeaway

As we have previously highlighted, service at the ITC can be much less cumbersome than in a district court.  This order is a reminder that even in situations where the ITC cannot successfully serve a foreign entity, Complainants may utilize the Rule 210.11(b) to personally serve Respondents.  The ability to personally serve such Respondents is another advantage of bringing a dispute to the ITC.

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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).