By Eric Schweibenz
On July 5, 2012, the International Trade Commission (the “Commission”) issued a notice determining to deny a motion filed by certain respondents to stay the general exclusion order and cease and desist orders issued by the Commission in Certain Ground Fault Circuit Interrupters and Products Containing Same (Inv. No. 337-TA-739).

By way of background, the Complainant in this investigation is Leviton Manufacturing Co., Inc. (“Leviton”), which alleged violation of Section 337 with respect to certain ground fault circuit interrupters and products containing the same that infringe certain claims of U.S. Patent Nos. 7,463,124 (the ‘124 patent), 7,737,809 (the ‘809 patent), and 7,764,151 (the ‘151 patent). Although the Notice of Investigation named numerous respondents, several were found in default or were terminated due to settlement, consent orders, or withdrawn allegations.  The seven remaining respondents were Zhejiang Trimone Electric Science & Technology Co. Ltd. (“Trimone”), Fujian Hongan Electric Co, Ltd. (“Hongan”), TDE, Inc., Shanghai ELE Manufacturing Corp., Orbit Industries, Inc., American Electric Depot Inc., and Shanghai Jia AO Electrical Co.  ALJ Bullock issued an initial determination (“ID”) on December 20, 2011 finding no violation of Section 337 on the grounds that Leviton had not sufficiently shown that a domestic industry exists with respect to the three asserted patents and/or articles protected by those patents.  On February 21, 2012, the Commission issued a notice that it had determined to review the ID in its entirety and requested submissions from the parties on certain issues under review, and from the parties and the public on the issues of remedy, the public interest, and bonding.  See our February 24, 2012 post for more details.  Upon review, the Commission determined that a violation of Section 337 has been shown based on infringement of claims 1-4, 6, 8-11, 13, 15-16, 35-37, 39, and 41-46 of the ‘809 patent.  Regarding a remedy, the Commission determined to issue a general exclusion order prohibiting the unlicensed entry of ground fault circuit interrupters and products containing same that infringe one or more of the above-enumerated claims of the ‘809 patent, as well as cease and desist orders against various defaulting respondents prohibiting them from importing, selling, marketing, distributing, offering for sale, and advertising such ground fault circuit interrupters and products containing same.  See our May 3, 2012 notice for more details. 

According to the July 5 notice, on May 10, 2012, Respondents Trimone and Hongan filed a motion with the Commission seeking to stay the Commission’s remedial orders pending appeal to the U.S. Court of Appeals for the Federal Circuit.  On May 21, 2012, Leviton and the Commission Investigative Attorney filed oppositions to the motion.  After considering the motions and reviewing the record, the Commission determined to deny the motion.  In support of its decision, the Commission’s order denying the motion cited the Federal Circuit’s 1990 decision in Standard Havens Prods. Inc. v. Gencor Indus. Inc.