ALJ Pender Issues Recommended Determination on Remedy and Bond in Certain Kinesiotherapy Devices (337-TA-823)
On February 1, 2013, ALJ Thomas B. Pender issued the public version (dated January 22, 2013) of the Recommended Determination on Remedy and Bond (“RD”) in Certain Kinesiotherapy Devices and Components Thereof (Inv. No. 337-TA-823).
By way of background, the investigation is based on a December 2, 2011 complaint filed by Standard Innovation Corporation and Standard Innovation (US) Corp. (collectively, “Standard Innovation”) alleging violation of Section 337 in the importation into the U.S. and sale of certain kinesiotherapy devices and components thereof that infringe one or more claims of U.S. Patent Nos. 7,931,605 and D605,779. See our December 6, 2011 post for more details on the complaint.
Although ALJ Pender found no violation of Section 337, in the event that the International Trade Commission (“the Commission”) finds a violation of Section 337, ALJ Pender recommended that a general exclusion order be issued. The ALJ noted that “[w]hile Standard Innovation’s evidence supporting a GEO is not as detailed as in many cases where such a remedy was deemed appropriate, the evidence nonetheless shows collectively a widespread pattern of unauthorized use” including extensive counterfeiting combined with significant difficulty in identifying the sources of infringing products.
ALJ Pender determined that a cease and desist order would not be appropriate. Although Standard Innovation argued that the U.S. Respondents have maintained large inventories of accused products, the ALJ concluded that the inventories include products no longer at issue in the investigation. As such, the inventories are not “commercially significant.”
Lastly, although ALJ Pender agreed with Standard Innovation that a bond price should be set, the ALJ recommended that the Commission recalculate the amount to exclude products no longer encompassed within the scope of the investigation.