McCabe Files New 337 Complaint Regarding Certain Stringed Musical Instruments
On February 26, 2010, Geoffrey McCabe (“McCabe”), of Hollywood, California filed a complaint requesting that the ITC commence an investigation pursuant to section 337. The complaint indicates that McCabe is acting pro se.
The complaint alleges that the following proposed respondents (collectively, “Respondents”) unlawfully import into the U.S., sell for importation, and sell within the U.S. after importation certain stringed musical instruments and components thereof, including, fulcrum tremolos, as well as headless or tuner-less electric guitars equipped with fulcrum tremolos, which allegedly infringe Mr. McCabe’s U.S. Patent Nos. 5,965,831; 7,470,841; 6,175,066; 6,891,094; and 5,986,191 (“the asserted patents”):
- Floyd Rose Guitars of Redmond, Washington
- Floyd Rose Marketing, Inc. of Neptune, New Jersey
- Floyd Rose of Sammamish, Washington
- Davitt & Hanser Music Co., dba HHI of Hebron, Kentucky
- Ping Well Industrial Co., Ltd. of Taiwan
- Lerner, David, Littenberg, Krumholz & Mentlik, LLP of Westfield, New Jersey
- IBANEZ, Inc. (Hoshino) US of Bethlehem, Pennsylvania
According to the complaint, the devices at issue include guitars as well as various fulcrum tremolo models embodying improvements for the setup and establishing of an instrument’s initial tuned condition under the unique conditions of a fulcrum tremolo, and then ensuring that the fulcrum tremolo returns exactly to that initial tuned condition after its use. Such improvements include macro-tuners, ball bearing arrangements and global tuners.
In the complaint, McCabe alleges that Floyd Rose contributes to the infringement of the asserted patents; that Floyd Rose Guitars designs and imports components for assembly of accused products; and Floyd Rose Marketing, has a financial interest in the importing, exporting, sales and distribution of accused products. The complaint asserts that Lerner, David, Littenberg, Krumholz & Mentlik contributes to infringement of the asserted patents by controlling the business interests of the Floyd Rose Respondents. Davitt & Hanser Music Co. is accused of selling and distributing accused products manufactured by the Floyd Rose Respondents. Ping Well Industrial Co., Ltd., and IBANEZ, Inc. (Hoshino) are accused of designing, manufacturing, importing and/or distributing accused products.
Regarding domestic industry, McCabe states that he has made substantial investments in the exploitation of the asserted patents in the U.S. through research and development, engineering, licensing, product development, particularly pointing to strategic alliances with third party Kahler International, Inc., which manufactures fulcrum tremolos based on the asserted patents. The complaint notes that on November 3, 2006, the ITC instituted investigation 337-TA-586 based on a prior complaint by McCabe asserting infringement of four of the five patents asserted in this investigation against some of the same Respondents named in the instant complaint. The instant complaint further reports that the final initial determination in investigation 337-TA-586 found no violation based upon Mr. McCabe’s failure to satisfy the economic prong of the domestic industry requirement. The complaint relies upon further licensing agreements from litigation subsequent to investigation 337-TA-586, as well as on licenses that arose from investigation 337-TA-586, including those provided to the present Respondents.
Regarding potential remedy, Mr. McCabe requests that the Commission issue a general exclusion order and a cease-and-desist order prohibiting importation, sale after importation, marketing, distributing, offering for sale, selling, licensing, or use of infringing stringed musical instruments and components thereof that infringe the asserted patents.
