By: Alex Li and Blaney Harper – In a recent Commission opinion, the ITC reviewed and affirmed ALJ Bullock’s Initial Determination (ID), and issued a general exclusion order (“GEO”).  Certain Self-Anchoring Beverage Containers, Inv. 337-TA-1092, Comm’n Op. (July 24, 2019).  We have previously reported on this investigation in connection with the Initial Determination issued on August 27, 2018. (here).

The Complainants Harry Zimmerman, Alfray Design, Inc., and Mighty Mug, Inc. (“Complainants”) domestically manufacture the “Mighty Mug,” a patented beverage container that does not tip over and thus avoids spills.  To curb online sales of infringing competing products, they filed a complaint with the ITC in early 2018.  ALJ Bullock granted summary determination that the defaulting respondents had violated Section 337 and recommended a GEO as the appropriate remedy.

The Commission, upon review, agreed to issue a GEO, which prohibits all importation of infringing goods into the United States, even from non-parties.  A GEO is an appropriate remedy under 19 U.S.C. § 1337(d)(2), when “(A) a general exclusion from entry of articles is necessary to prevent circumvention of an exclusion order limited to products of named persons; or (B) there is a pattern of violation of this section and it is difficult to identify the source of infringing products.”  In reaching its conclusion to issue a GEO, the ITC found it significant that that there were numerous online portals selling the infringing products under different names, that the infringing products were shipped into the country using false and misleading labels, and that the sellers were basically anonymous with non-existing addresses listed.

Historically, a GEO has been a difficult remedy for Complainants to obtain at the ITC.  However, we have reported on numerous investigations over the past year where the ITC determined a GEO an appropriate remedy.  A common theme between these investigations is that the global economy has enabled infringing products to be anonymously manufactured by any number of entities and sold via the numerous available online portals.  In this factual scenario, it seems convincing to the ITC that a limited exclusion order (“LEO”) may be easily circumvented.

Takeaway

This opinion continues the apparent trend that the ITC is issuing more GEOs.  While conventional wisdom suggested complainants should not pursue GEOs, this strategy is changing.  Complainants at the ITC should consider the potential advantage of presenting the necessary evidence to support the issuance of a GEO when dealing with a widespread pattern of infringement.  Respondents should also take note that the ITC seems more willing than ever to issue GEOs to stop importation of infringing articles.

The following two tabs change content below.
Blaney Harper, who co-chairs the Firms intellectual property ITC practice, focuses on strategic patent litigation representing electronics, software, and information technology companies in matters such as patent enforcement in United States District Courts and the International Trade Commission (ITC). Blaney also represents and counsels clients concerning patent portfolio development and patent prosecution and appeal, including Inter Partes Review, in the USPTO. Blaney co-chairs the Firm's ITC practice and is the IP Practice Coordinator for the Washington Office.