By Eric Schweibenz
On May 17, 2011, CSP Technologies, Inc. (“CSP”) of Auburn, Alabama filed a complaint requesting that the ITC commence an investigation pursuant to Section 337.

The complaint alleges that Süd-Chemie AG of Germany, Süd-Chemie, Inc. of Louisville, Kentucky (collectively, “Süd-Chemie”), and Airsec S.A.S. of France (“Airsec”) (collectively, the “Proposed Respondents”) unlawfully import into the U.S., sell for importation, and/or sell within the U.S. after importation certain flip-top vials and products using the same that infringe U.S. Patent No. 7,537,137 (the ‘137 patent).

According to the complaint, the ‘137 patent “relates to a resealable container and lid assembly having a lip snap seal for storing and packaging moisture-sensitive items, including but not limited to edible breath-freshening strips, drug delivery strips, diagnostic test strips, and effervescent tablets.”

In the complaint, CSP alleges that the Proposed Respondents “are direct competitors of CSP in the field of product packaging for products such as diagnostic test strips.”  CSP also alleges that the “infringing flip-top vials are offered by Süd-Chemie as Handy Active Tubes® (HAT®),” “Airsec manufactures the infringing flip-top vials in France,” and “Süd-Chemie, directly or indirectly, imports, sells for imporation, and/or sells within the United States after importation the infringing flip-top vials or products using the same.”  CSP further alleges that Süd-Chemie sells and offers for sale the accused HAT® tubes to pharmaceutical distributors for packaging products in the accused vials.  According to the complaint, one such pharmaceutical distributor is LifeScan, Inc., a Johnson & Johnson Company.

Regarding domestic industry, CSP asserts that a domestic industry exists in the U.S. and/or is in the process of being established in the U.S. with respect to the articles protected by the ‘137 patent.  Specifically, CSP alleges that it has made substantial investment in the exploitation of the ‘137 patent, including substantial investment in engineering, research and development that are related to the ‘137 patent.  CSP also alleges that it has made significant investment in plant and equipment and has made significant employment of labor and capital in the U.S. that are related to articles protected by the ‘137 patent.  Finally, CSP alleges that its Lip-Seal Vials are covered by the asserted claims of the ‘137 patent.

As to related litigation, CSP asserts that it filed on March 14, 2011 a complaint against the Proposed Respondents in the U.S. District Court for the Southern District of Indiana for infringement of the ‘137 patent.  In addition, CSP asserts that it previously filed suits involving foreign counterparts of the ‘137 patent in Germany and France against Süd-Chemie and Airsec, respectively.

With respect to potential remedy, CSP requests that the Commission issue a permanent exclusion order and permanent cease and desist orders directed at the Proposed Respondents.