ITC Issues Notice of Final Determination Finding Violation And General Exclusion Order In Certain Protective Cases (337-TA-780)

Posted On: November 5, 2012   by:

On October 31, 2012, the International Trade Commission (“the Commission”) issued a notice finding a violation of Section 337, and determining that a general exclusion order and several cease and desist orders should issue in Certain Protective Cases and Components Thereof (Inv. No. 337-TA-780).

By way of background, Otter Products, LLC (“Otter”) filed its complaint in this investigation on May 25, 2011, alleging that Griffin Technology, Inc. (“Griffin”) unlawfully imported, sold for importation, and/or sold after importation certain protective cases and/or components thereof for cellular phones, mobile music players, and/or tablet computers that infringe U.S. Patent No. 7,933,122.  Numerous other parties were terminated by settlement, consent order, or found to be in default for infringing various additional patents.  The Commission instituted this investigation on June 24, 2011.  See our June 27, 2011 post for more details.

As summarized in our July 18, 2012 post, ALJ Essex issued an Initial Determination (“ID”) finding that there has been a violation of Section 337 by numerous defaulting respondents in this investigation with respect to U.S. Patent Nos. D600,908; D617,784; D615,536; D617,785; D634,741; D636,386; and 7,933,122; and U.S. Trademark Registrations 3,788,534; 3,788,535; 3,623,789; and 3,795,187 (collectively, “asserted patents and trademark registrations”).  In the ID the ALJ noted without substantial discussion that, in view of undisputed evidence, each of the defaulting respondents satisfied the importation requirement and their accused products literally infringed the asserted patents and trademarks.  The ALJ also found that there had been a violation of Section 337 by Griffin with respect to the Griffin Survivor for the iPad 2 and the Griffin Explorer for the iPhone 4, but that the Griffin Survivor for the iPod Touch did not literally infringe.

After reviewing the parties’ petitions for review, the Commission determined on August 30, 2012, to review the ALJ’s finding that the accused Griffin Survivor for iPod Touch did not literally infringe the asserted claims of U.S. Patent No. 7,933,122 (the ‘122 patent).  The Commission declined to review any other issues in the ID.  See our September 5, 2012 post for more details.

According to the October 31 notice, the Commission determined to reverse the ALJ’s finding that the accused Griffin Survivor for iPod Touch does not literally infringe the asserted claims of the ‘122 patent and adopted the ALJ’s findings in all other respects.  Having found a violation of Section 337, the Commission determined that the appropriate remedy is (1) a general exclusion order prohibiting the unlicensed entry of protective cases and components thereof that infringe the asserted patents and trademark registrations; (2) cease and desist orders prohibiting the U.S. defaulting respondents from conducting various activities that would infringe the asserted patents and trademark registrations; and (3) a cease and desist order prohibiting Griffin from conducting various activities that would infringe the ‘122 patent.  The Commission also determined that a bond corresponding to varying percentages of an article’s entered value would be required for temporary import during the Presidential review period.  With respect to Griffin, a bond in the amount of 12.45% is required for tablet cases, and no bond is required for non-tablet cases; for defaulting respondents, a bond in the amount of 331.8% for tablet cases and 245.53% for non-tablet cases is required; and for all other infringing products, a bond of 100% of the entered value of the product would be required.  According to the notice, the Commission thereby terminated the investigation.

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