ITC Blog: ITC 337 Update

The Commission has declined to enter a consent order, and instead terminated on the basis of a settlement agreement, Inv. No. 337-TA-568, Certain Products and Pharmaceutical Compositions Containing Recombinant Human Erythropoetin. On May 12, 2006 complainant Amgen Inc. filed a complaint against respondents Roche Holding Ltd.; Roche Diagnostics GmbH; and Hoffman La Roche Inc. (collectively “Roche”), which resulted in the institution of the investigation. After separate remands by the Federal Circuit and a parallel civil action involving many of the same patents, on December 18, 2009, the private parties executed a settlement agreement. The parties also agreed to a consent order in the parallel district court action.

On December 22, 2009, Amgen moved to terminate the investigation by entry of an exclusion order based on preclusion caused by the district court judgment. On March 11, 2011, the Commission issued an order to show cause in which it noted that Amgen’s request of an exclusion order appeared to contravene the Commission’s longstanding policy of not reaching an issue of violation in terminating investigations based on settlement agreements. Amgen and Roche subsequently filed a joint response seeking a consent order, rather than an exclusion order.

In its current order, the Commission elected to terminate the investigation based on settlement agreement and declined to exercise its discretion to issue a consent order. The Commission cited several reasons for its opinion. First, the consent order was not pursued by the parties at the time of settlement. Second, it noted the Commission appears to lack jurisdiction to enforce the settlement agreement between the parties, and would therefore likely lack jurisdiction to enforce a consent order to the extent the settlement agreement was involved. Finally, the Commission noted that the proposed consent order contained language typical of cease and desist orders that is not routinely seen in consent orders.
 

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On September 13, 2011, in Inv. No. 337-TA-650, the Commission issued a general exclusion order following a remand from the Federal Circuit in John Mezzalingua Associates v. Int’l Trade Comm’n, 2011 U.S. App. LEXIS 8806 (Fed. Cir. Apr. 28, 2011).  The Federal Circuit's opinion reversed the Commission’s prior finding of no violation due to no domestic industry. The complainant is John Mezzalingua Associates, Inc., the respondents are GEM Electronics and Fu Ching Technical Industry Co., Ltd., and the technology at issue is coaxial cable connectors.  The general exclusion order prohibits the entry of unlicensed coaxial cable connectors that infringe claims 1 and 5 of U.S. Pat. No. 5,470,257.

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ALJ Rogers issued his Initial Determination in Inv. No. 337-TA-723, Certain Inkjet Ink Cartridges With Printheads and Components Thereof. ALJ Rogers found that Respondents PTC Holdings Limited of Kowloon and Microjet Technology Co., Ltd. infringe the remaining five patents-in-suit. Respondent Asia Pacific Microsystems, Inc. was found not to infringe any of the patents-in-suit. ALJ Rogers found that a domestic industry exists for all patents and all patents had previously been found not invalid on summary determination. Respondent Microjet was found to be in default in a prior Initial Determination. ALJ Rogers recommended a general exclusion order and that bond be set at 100% of the entered value of the imported infringing goods.

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On January 28, 2011, the ITC issued a general exclusion order with respect to claims 6 and 9 of U.S. Patent No. 6,089,687 and claims 1, 5, and 6 of U.S. Patent No. 6,264,301, and a cease and desist order against respondent Mextec Group, Inc. d/b/a Mip America Ltd. of Miami, Florida with respect to the same claims in Inv. No. 337-TA-691, Certain Inkjet Ink Supplies and Components Thereof. These orders are a result of a complaint filed by Hewlett-Packard Company of Palo Alto, California where the seven respondents defaulted.

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The Commission has issued a general exclusion order in 337-TA-678, Certain Energy Drink Products.  After settlement agreements were reached and the investigation terminated as to four respondents on January 20, 2010, the remaining respondents defaulted, and complainants Red Bull GmbH and Red Bull North America sought summary determination and a general exclusion order. The Commission's ruling prohibits the unlicensed entry into the U.S. of energy drink products that infringe Trademark Registration Nos. 3,092,197; 2,946,045; 2,994,429; 3,479,607; Copyright Registration No. VA0001410959; or any marks or designs that are confusingly similar or misleading as to source or origin.  The Commission also terminated the investigation.

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On July 19, the Commission issued its final determination not to modify the limited exclusion order entered in Inv. No. 337-TA-564, Certain Voltage Regulators, Components Thereof, and Products Containing Same. The original investigation, which began in March 2006, accused certain products of Advanced Analogic Technologies of infringing U.S. Patent Nos. 6,411,531 and 6,580,258.  After an investigation, the Commission issued a limited exclusion order against certain of Advanced Analog's products that were found to infringe the '258 patent. 

The current enforcement proceeding was begun in October 2008 based on a complaint filed by the original complainant, Linear Technology Corp. On March 18, 2010, the presiding ALJ found that Advanced Analogic's accused products violated the limited exclusion order in place.  However, the Commission determined that the products at issue in the enforcement proceeding are already covered by the existing exclusion order, and therefore modification of the order was not necessary.
 

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On March 31, 2010, the Commission issued notice of its determination that a violation of section 337 occurred by Hanjiang Fei Yu Electronics Equipment Factory of China, Zhonguang Electronics of China, Yangzhou Zhongguang Electronics Co. of China and Yangzhou Zhonguage Foreign Trade Co. Ltd. of China with respect to U.S. Patent Nos. 6,558,194, and D519,076 in Inv. No. 337-TA-650, In the Matter of Certain Coaxial Cable Connectors and Components Thereof and Products Containing Same. The Commission determined to issued a general exclusion order and a limited exclusion order, as well as a remand order remanding the portion of the investigation relating to D440,539 to the ALJ for further proceedings. The Commission also determined to extend the target date of the investigation to June 1, 2010. (PDF)

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On September 21, 2009, the Commission issued a notice affirming the initial determination by ALJ Gildea that section 337 was violated, terminating the investigation, and issuing a general exclusion order in Inv. No. 337-TA-643, In the Matter of Certain Cigarettes and Packaging Thereof. (PDF)

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The Commission affirms the ALJ’s findings (with modifications) in Inv. No. 337-TA-629, In the Matter of Certain Silicon Microphone Packages and Products Containing the Same. After reviewing various portions of the final initial determination, the Commission determined to affirm virtually all of the ALJ’s findings. The Commission indicates that, despite the affirmance, modifications would be made to the ALJ’s findings concerning: infringement of U.S. Pat. No. 6,781,231; the ALJ’s finding that claims 1 and 2 of the ’231 patent are not invalid; the ALJ’s construction of “volume” in U.S. Pat. No. 7,0242,089; infringement of the ’089 patent; the ALJ’s finding that the asserted claims of the ’089 patent are not invalid.

The Commission also issued a limited exclusion order prohibiting the unlicensed entry of silicon microphone packages which infringe the asserted claims and that are manufactured abroad by or on behalf of, or are imported by or on behalf of MemsTech. (PDF)

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On July 20, 2009, the Commission issued the public version of its June 20, 2009, Order on Remedy, the Public Interest, and Bonding in Inv. No. 337-TA-637, In the Matter of Certain Hair Irons and Packaging Thereof. The Commission determined not to review the ALJ’s finding that there has been a violation of section 337. In the Order the Commission agreed with the ALJ’s findings on remedy that there was a pattern of violation and that it was difficult to identify the source of infringing goods, thus determining that the appropriate remedy was a general exclusion order. The Commission also concluded that the public interest would not be harmed by the general exclusion order.  (PDF)

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