By Eric Schweibenz
On July 10, 2012, ALJ Thomas B. Pender issued Order No. 27 in Certain Kinesiotherapy Devices and Components Thereof (Inv. No. 337-TA-823).  In the Order, ALJ Pender denied Complainants Standard Innovation (US) Corp. and Standard Innovation Corporation (collectively, “SIC”) and Respondents Lelo Inc., LELOi AB, Lelo Shanghai Trading Ltd. (collectively, “Lelo”), PHE Inc., Nalpac Enterprises, Ltd., E.T.C., Inc., Williams Trading Co., Inc., Honey’s Place, Inc., and Lover’s Lane & Co.’s (“Lover’s Lane”) (all collectively, the “Moving Parties”) motion for leave to file motions for summary determination on or before July 2, 2012 in accordance with the Procedural Schedule even though these motions for summary determination would be filed less than 60 days before the date fixed for the evidentiary hearing.

According to the Order, the Moving Parties argued that their reliance on the Procedural Schedule constituted exceptional circumstances and that good cause existed to permit their summary determination motions to be filed out of time.  The Commission Investigative Staff did not oppose the Moving Parties’ motion.

After considering the arguments, ALJ Pender determined to deny the Moving Parties’ motion for leave and thus to deny as untimely SIC’s motion for summary determination of no inequitable conduct, Lelo’s motion for summary determination of non-infringement, and Lover’s Lane and others’ motion for summary determination of invalidity.  In particular, ALJ Pender found that he had adopted the parties’ proposal that the deadline for motions for summary determination be set at July 2, 2012 in the Procedural Schedule.  However, the ALJ further found that this date was inconsistent with Commission Rule 210.18(a), which requires that all motions for summary determination in connection with the issue of permanent relief be filed at least 60 days before the evidentiary hearing.  According to the Order, “[e]ach ALJ carries a heavy docket and cannot be expected to confirm each filing of all parties in all investigations complies with the rules.”  Thus, the fact that the Procedural Schedule was incompatible with Commission Rule 210.18(a) was the fault of the parties.  ALJ Pender therefore found that the Moving Parties had not shown exceptional circumstances that would warrant allowing their motions for summary determination to be filed out of time, and denied their motion for leave.

In addition, the ALJ denied an unopposed motion by Lelo to extend the deadline to file a motion for summary determination as to the design patent in the investigation.  According to the Order, the ALJ had already issued an Initial Determination terminating the investigation with respect to the design patent.  Thus, Lelo’s motion to extend the deadline was moot, and ALJ Pender denied the motion accordingly.