27
Apr
By Eric Schweibenz
On April 25, 2011, the International Trade Commission (the “Commission”) issued a notice determining not to review a Remand Initial Determination (“ID”) issued by ALJ Charles E. Bullock on February 9, 2011 in Certain Foam Footwear (Inv. No. 337-TA-567).

By way of background, Complainant Crocs, Inc. (“Crocs”) filed a complaint with the ITC naming eleven respondents, alleging violations of Section 337 by infringement of U.S. Patent Nos. 6,993,858 (the ‘858 patent) and D517,789 (the '789 patent) and the Crocs trade dress.  All respondents except Double Diamond Distribution Ltd. and Effervescent, Inc. (collectively, “Respondents”) were terminated from the investigation on the basis of a consent order, settlement agreement, or an undisputed Commission determination of non-infringement.  On April 11, 2008, ALJ Bullock issued an initial determination 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 initial determination with certain modifications and clarifications.  Crocs appealed the ITC decision and on February 24, 2010, the Federal Circuit overturned 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.  See our February 24, 2010 post for more details.  ALJ Bullock determined in a notice dated August 26, 2010, that “the issue of enforceability was tried before the undersigned and fully briefed by the parties in their post-trial submissions…[and thus] the remand proceedings will proceed on the evidence already of record.”  On February 9, 2011, ALJ Charles E. Bullock issued the remand ID determining that Respondents had not shown by clear and convincing evidence that the ‘858 patent and the '789 patent are unenforceable due to inequitable conduct.

In the April 25 notice, the Commission determined not to review the remand ID.  Also, the Commission determined “to reaffirm the ALJ’s previous ruling that claims 1 and 2 of the ‘858 patent are infringed by Effervescent’s accused products, and that claim 2 of the ‘858 patent is infringed by Double Diamond’s accused products.”  The Commission further determined that “[t]hese actions, along with the Federal Circuit’s decision, result in a finding of a violation of section 337 by [Respondents].”

According to the April 25 notice, the parties' written submissions on the issues of remedy, the public interest, and bonding are due on May 6, 2011.  Reply submissions are due on May 13, 2011.
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