ITC Issues Order Remanding Investigation Following Federal Circuit Decision In Certain Foam Footwear (337-TA-567)
On July 6, 2010, the ITC issued an order in Certain Foam Footwear (Inv. No. 337-TA-567). The order followed a February 24, 2010 judgment of the Federal Circuit overturning the ITC’s July 25, 2008 final determination of no violation of Section 337 and remanding the investigation. See our February 24, 2010 post for more details. In the Order, the ITC remanded the investigation to Chief ALJ Paul J. Luckern for assignment.
By way of background, Complainant Crocs, Inc. (“Crocs”) filed a complaint and an amended complaint with the ITC, alleging violations of Section 337 by reason of infringement of U.S. Patent Nos. 6,993,858 (the ‘858 patent) and D517,789 (the ‘789 patent) and the Crocs trade dress. The ITC instituted an investigation on May 11, 2006. On April 11, 2008, ALJ Charles E. Bullock issued an initial determination (“ID”) finding no violation of Section 337 by reason of invalidity of the ‘858 patent and non-infringement/non-satisfaction of the technical prong of the domestic industry requirement concerning the ‘789 patent. ALJ Bullock made no findings regarding the enforceability of the ‘858 and ‘789 patents. On July 25, 2008, the ITC affirmed ALJ Bullock’s ID with certain modifications and clarifications, terminating the investigation. Like ALJ Bullock, the ITC took no position regarding the issue of enforceability of the ‘858 and ‘789 patents. Crocs appealed the ITC decision and on February 24, 2010, the Federal Circuit issued its judgment overturning the ITC’s findings regarding invalidity of the ‘858 patent and non-infringement/non-satisfaction of the technical prong of the domestic industry requirement concerning the ‘789 patent, remanding the investigation for a determination of infringement and any appropriate remedies.
Against this background, the ITC ordered that the investigation be remanded to the chief ALJ, Paul J. Luckern, for assignment to a presiding ALJ and proceedings consistent with the February 24,2010 judgment of the Federal Circuit in Crocs, Inc. v. United States Int’l Trade Comm’n, 598 F.3d 1294 (Fed. Cir. 2010), including a determination regarding the outstanding issue of enforceability of the ‘858 and ‘789 patents and issuance of a final initial determination. The order stated that the final initial determination would be processed in accordance with Commission Rules 210.42(a) and 210.43-46 and noted that the assigned ALJ could otherwise conduct the remand proceedings as he deemed appropriate, including reopening the record.