By Eric Schweibenz
On December 22, 2009, the International Trade Commission issued a notice determining to review Chief ALJ Paul J. Luckern’s November 4, 2009 Initial Determination (Order No. 27) (“ID”) granting Complainant Humanscale Corporation’s (“Humanscale”) motion for summary determination on the economic prong of the domestic industry requirement in Certain Adjustable Keyboard Support Systems and Components Thereof (Inv. No. 337-TA-670).

By way of background, the Commission instituted this investigation on March 9, 2009.  See our March 11 post for more details.  The Respondents in this investigation are CompX International, Inc. and Waterloo Furniture Components, Ltd. d/b/a CompX Waterloo (collectively, “CompX”).  On November 4, 2009, ALJ Luckern issued the ID finding that the economic prong of the domestic industry requirement of 19 U.S.C. § 1337(a)(3) was met.  See our November 19 post for more details.

On November 16, 2009, CompX filed a petition for review of the ID.  On November 23, 2009, Humanscale and the Commission Investigative Staff filed oppositions to the petition for review.

After examining the record of the investigation, including the ID, the Commission decided to review the ID.  Specifically, the December 22 notice requests briefing on seven questions (with sub-questions) of particular interest to the Commission:

  • Are the patented articles themselves articles of commerce and is there a separate market for the patented articles?  To what extent should these factors affect the domestic industry analysis?  Should the Commission take into account the relative sizes of the markets for the patented articles and the domestically-produced articles?

  • What other factors related to the “realities of the marketplace” should the Commission consider in its domestic industry analysis, both in general and with respect to this particular investigation?

  • Should the Commission consider whether the patented article contributes significantly to the final, finished product, and if so, what should guide the analysis, both in general and with respect to this particular investigation?

  • Can the Commission find a domestic industry related to a domestically-produced article that is not physically integrated with the patented article?

  • Are the domestically-produced products necessary for the imported products to practice the ‘097 patent?

  • Please address the Federal Circuit’s decision in Schaper Manuf. Co. v. USITC, 717 F.2d 1368 (Fed. Cir. 1983).

  • Please address further any policy considerations you believe are raised by the domestic industry analysis on the facts of this investigation.

Written submissions in response to the Commission’s December 22 notice are due by January 15, 2010, with reply submissions due by January 22, 2010.